Uttarakhand High Court
Naresh Kumar Saini vs Smt. Sheetal Saini on 30 December, 2020
Author: Alok Kumar Verma
Bench: Ravi Malimath, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
FIRST APPEAL NO. 105 OF 2016
Naresh Kumar Saini ....Appellant.
Vs.
Smt. Sheetal Saini .....Respondent
Shri Siddharth Singh, learned counsel for the appellant.
Shri Sanjeev Singh, learned counsel for the respondent.
December 30, 2020
Coram:Hon'ble Ravi Malimath, ACJ.
Hon'ble Alok Kumar Verma, J.
Alok Kumar Verma, J. (Oral) This appeal is filed by the appellant (husband) against the judgment and decree dated 24.10.2016 passed by the Additional Judge, Family Court, Roorkee, District Haridwar in Original Case No. 13 of 2014 Naresh Kumar Saini vs. Smt. Sheetal Saini, by which learned Additional Judge, Family Court, Roorkee, District Haridwar declined to grant the decree of divorce on the ground of cruelty.
2. The brief facts of the case, which are necessary to notice for deciding the appeal, are that admittedly, the appellant got married to the respondent on 09.02.2006. Out of this wedlock, one daughter was born on 11.10.2007. She is living with the respondent. Both, the appellant and the respondent, are living separately since 02.01.2014. The appellant is a Junior Engineer in the Provincial Works Department of Kotdwar, District Pauri Garhwal.
3. The appellant filed a petition for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the "Act, 1955") on the ground of "cruelty".
4. The appellant, in his petition, pleaded the following circumstances, which, according to him, constitute "cruelty" within the meaning of Section 13 (1) (i-a) of the Act, 1955 entitling him to claim dissolution of marriage against the respondent-
(I) The first ground of cruelty was related to his wife's behavior. The respondent did not like him since their marriage. She did not want to live with him. At the time of marriage, their relatives persuaded her to go with him.
(II) The second ground of cruelty was that she never paid any respect to him and his parents. (III) The third ground of cruelty was that in the year 2007, he spent Rs. one lac in getting her admission for the B.Ed. course and at the time of her delivery he admitted her to a reputed Nursing Home. Even then, her behavior was not good towards him.
(IV) The fourth ground of cruelty was that she had started insulting him publicly and her behavior was ruthless towards him.
(V) The fifth ground of cruelty was that when he complained to her father regarding her behavior, her father and one Surendra Saini abused him in Kotdwar in front of her, but, she did not oppose it. She herself used to threaten him.
(VI) The sixth ground of cruelty was that she did not even allow her daughter to meet her grand-
2father and grand-mother. She did not allow her to stay with him nor to attend the family events. (VII) The seventh ground of cruelty was that since the end of the year 2012, she used to live in his government residence, but lived in a separate room.
(VIII) The eighth ground of cruelty was that she stopped cooking for him and threatened him to add poison to the food when he tried to convince her. Due to this, his life was in danger and he was forced to take food in the hotel continuously. (IX) The ninth ground of cruelty was that she denied marital relations with him without any reason.
(X) The tenth ground of cruelty was that in February, 2013, her health deteriorated. By facing all kinds of problems, her treatment was conducted by him in Roorkee and Haridwar. He again brought her to Roorkee for her treatment on 04.04.2013. She then refused to go to Kotdwar with him. She had gone to her parental house with her brother and she came back with great difficulty after one month.
(XI) The eleventh ground of cruelty was that she filed a false case under the Protection of Women from Domestic Violence Act, 2005.
(XII) The twelfth ground of cruelty was that during the counselling proceedings in the office of the Circle Officer of Police, Kotdwar, on 01.01.2014, she insulted him and threatened to implicate him in a false case.
(XIII) The thirteenth ground of cruelty was that on 02.01.2014, she locked up his government 3 residence and without informing him and in his absence she went away with the daughter, and when he asked her on mobile phone, she told him that she was in her parental house.
5. In the circumstances, the appellant stated that it has become impossible for him to live with her as husband and wife.
6. The respondent filed her written statement and denied the allegations of the appellant. She pleaded, inter alia, that the marriage was solemnized with her own will and she always tried to live with the appellant. The appellant and his parents were not satisfied with the articles that were given in marriage. He did not like her since marriage. As per his wish, she did her B.Ed. course. He and his parents used to tell her to earn money and give it to them. Her father and the appellant spent money jointly at the time of the birth of her daughter. The appellant and his parents taunted her for not giving birth to a son. She tolerated her insult. After he got a government residence at Kotdwar in the month of November, 2009, the appellant resided therein. He kept distance from her. He was transferred to Pauri and Lansdowne, but he kept her and her daughter in Kotdwar. He told her several times that the pandits had told him that she cannot give him a son. He started torturing her and doubted her character. Since June, 2011, he is not paying any attention to her and his daughter. Her father and relatives went to Kotdwar, he humiliated them. Her father is helping her financially. She is residing with her daughter in the government residence, which is allotted to him. He used to lock his house due to which she had to stay out with her 4 daughter. He used to take his food in the hotel only to give her mental torture. She and her daughter had to starve for several days when her father was late in sending money. Due to his torture, she fell ill. Her treatment is going on in Haridwar. He told her that he has neither time nor money to take her to the doctor. It was because of his torture, she was forced to file a case against him under the provisions of the Protection of Women from Domestic Violence Act, 2005. She loves him, respects him and his family members.
7. The trial Court framed the following issues on the basis of the pleadings of the parties:-
(I) Whether, after the marriage, the respondent has treated the appellant with cruelty? (II) Relief?
8. The appellant examined himself as PW1.
9. The respondent examined herself as DW1.
10. After hearing both the parties, the petition, filed by the appellant, against the respondent seeking dissolution of marriage, was dismissed. Hence, this appeal.
11. We have heard learned counsel for the parties through video-conferencing and perused the records.
12. Mr. Siddhartha Singh, learned counsel appearing for the appellant submitted that learned trial court failed to appreciate the evidence and exhibits on record in its true perspective and further ignored the probabilities and preponderance of probabilities involved in the case; learned trial court has not 5 considered this important fact that the respondent had not sought any relief in her counter-claim seeking restitution of conjugal rights, nor did she file any separate suit for the said relief, it goes to show the intention and conduct of the respondent; in matrimonial suits, surrounding circumstances and conduct of the parties play an important role; even if husband and wife are living under one roof, under these circumstances, it also cannot be said that any cruelty has been condoned; refusal of the wife to co-habit with the husband without any reason, refusal of wife to live with the husband and to join his company, threat by wife for implicating the husband's family members in a false case, and threat by wife of committing suicide or add poison in the food of the husband are the acts of cruelty; learned trial court has ignored the fact that there are allegations of physical and mental cruelty levelled by the wife against the husband, and she is living separately since January, 2014 without any reason.
13. Learned counsel for the respondent, on the other hand, justified the reasoning adopted by learned trial court and argued that allegations regarding behaviour and conduct of the respondent are false; on the contrary, the behaviour of the appellant and his parents was not proper with the respondent; the appellant wants to take divorce on frivolous ground; she is still residing in the government residence, allotted to the appellant; the appellant did not examine any independent witness to prove his allegations; due to behaviour of the appellant, she was forced to live separately from the appellant, whereas, she is willing to live with the appellant.
614. The appellant filed a petition for dissolution of marriage under Section 13 (1) (i-a) of the Act, 1955. The provision of Section 13(1) (i-a) of the Act is as follows:
Section 13. Divorce-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i.) ..........; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b)..............
15. The word "cruelty" used in Section 13(1)(ia) of the Act, 1955 is not defined under the Act, 1955. Cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence. The question whether any party treated the other party with cruelty is a single question only to be answered after all the facts have been taken into account.
16 . In V. Bhagat vs. Mrs. D. Bhagat, (1994) 1 SCC 337, the Hon'ble Supreme Court considered the concept of "mental cruelty" in the context of Section 13 (1) (ia) of the Act, 1955. The Hon'ble Supreme Court observed that it can be defined as conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.
717 . In Vinita Saxena Vs. Pankaj Pandit, (2006)3 SCC 778, the Hon'ble Supreme Court observed, "31.It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
32.The word "cruelty" has not been defined and it has been used in relation 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 and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may 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."
18. Cruelty has to be distinguished from the ordinary wear and tear of family life. However, even mental torture or abnormal behaviour may amount to cruelty in a given case.
19. In Savitri Pandey Vs. Prem Chandra Pandey, (2002) 2 SCC 73, the Hon'ble Supreme Court observed that mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of 8 the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party.
20. In Praveen Mehta vs. Inderjeet Mehta, (2002) 5 SCC 706, the Hon'ble Supreme Court observed that cruelty for the purpose of Section 13 (1) (ia) of the Act, 1955 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 him or her to continue the matrimonial relationship with the other.
21. In Dr. (Mrs.) Malathi Ravi vs. Dr. B. V. Ravi M.D., (2014) 7 SCC 640, the Hon'ble Supreme Court considered the case of Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511. What amounts to "mental cruelty"
was explained by the Hon'ble Supreme Court Samar Ghosh Vs. Jaya Ghosh, (2007)4 SCC 511. Their Lordships enumerated following category of cases which are considered relevant while examining the question as to whether the facts alleged in the matter and proved constitute "mental cruelty". Paragraph 101 of the said judgment is being reproduced below :-
"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 9 wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one 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 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.
10(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 separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
22. The appellant, in his oral evidence, has narrated in detail, the incidents of alleged cruelty suffered by him. The appellant deposed that the respondent never paid any respect to him. She had started insulting him publicly and her behaviour was ruthless. When he complained to her father regarding her behaviour, her father and one Surendra Saini abused him in front of her, but she did not oppose it. She herself used to threaten him. She did not even allow his daughter to meet her grand-father and grand-mother. She did not allow her to stay with him nor to attend the family events. A government residence was allotted to him. She is living in that residence but in a separate room. She stopped cooking for him and threatened him to add poison to his food. Due to this, his life was in danger and he was forced to take food in the hotel. She denied marital relations with him without any 11 reason. He stated in his cross-examination that there was no cohabitation between them for eight and half years. This evidence is unrebutted. He further stated in his cross-examination that the respondent always insulted him and she used to misbehave with him.
23. Learned counsel for the respondent argued that the appellant did not examine any independent witness to prove his allegations, therefore, the appellant has failed to prove his allegations.
24. In A. Jayachandra Vs. Aneel Kaur, (2005)2 SCC 22, it was held that the concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife.
25. The allegations of the appellant regarding misbehaviour of the respondent is corroborated with his evidence. He supported his allegation even in his cross- examination.
26. Learned counsel for the respondent submitted that the respondent was always willing to live with the appellant. But, this argument ipso facto is in conflict with the conduct of the respondent. This fact is admitted by the respondent that both, the appellant and the respondent, are living separately since 02.01.2014. But, she never filed any petition for restitution of conjugal rights. The appellant stated in his cross-examination that the respondent refused to cohabitate with him and there was no cohabitation between them for eight and half years. Refusal to cohabitate for considerable period without any valid reason amounts to mental cruelty.
1227. All these circumstances, nullify the allegations of the respondent that due to behaviour of the appellant, she was forced to live separately from the appellant, whereas, after appreciation of the evidences, produced by the parties, the case of the appellant is found to be credible that there was sustained unjustifiable conduct and behaviour of the respondent due to which, the appellant was forced to seek dissolution of his marriage.
28. In the light of the facts and circumstances of the case, no useful purpose would be served to keep the relations between them alive.
29. For the above reasons, we hold that the conduct of the respondent amounts to legal cruelty within the meaning of Section 13 (1) (ia) of the Act, 1955 and the appellant is entitled to a decree of divorce dissolving the marriage between the parties.
30. The appeal is consequently allowed. The judgment and decree dated 24.10.2016, passed by the Additional Judge, Family Court, Roorkee, District Haridwar in Original Case No.13 of 2014, 'Naresh Kumar Saini vs. Smt. Sheetal Sain" is set aside. The marriage, solemnized between the parties on 09.02.2006, hereby stands dissolved. There is no order as to costs.
31. We also make it clear that it is open for the respondent to take appropriate steps for grant of maintenance in accordance with law and in the event an application for alimony is filed the same shall be disposed of by the competent court in accordance with law.
1332. The decree to be drawn accordingly.
(Alok Kumar Verma, J.) (Ravi Malimath) ACJ JKJ/Sanjay 14