Punjab-Haryana High Court
(O&M;) Veena Devi vs Chandel Basdev on 3 December, 2014
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO-M-213 of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO-M-213 of 2004
Date of Decision: 3.12.2014
Veena Devi
....Appellant.
Versus
Chandel Basdev
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MRS. JUSTICE SNEH PRASHAR.
PRESENT: Ms. Maninderpreet Kaur, Advocate for the appellant.
Mr. J.S. Thind, Advocate for the respondent.
AJAY KUMAR MITTAL, J.
1. By way of instant appeal, the appellant-wife has challenged the judgment and decree dated 19.8.2004 passed by the Additional District Judge, Fatehabad, whereby the petition filed by the respondent- husband under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act") for dissolution of marriage by a decree of divorce on the grounds of cruelty and desertion, was allowed.
2. A few facts necessary for adjudication of the present appeal as narrated therein may be noticed. The marriage between the parties was solemnized on 12.12.1989 in accordance with Hindu rites and ceremonies at village Angod District Karnal. The parties lived together as husband and wife and cohabited as such at village Shekhupur Sotar, Tehsil Ratia, District Fatehabad. Out of the said wedlock, a male child was born. Prior to the solemnization of the marriage, the appellant was told that the respondent was permanently residing at Germany and occasionally visits his native place at village Shekhupur Sotar and would try to take her with him to Germany. After the marriage, the respondent GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -2- remained in India for about 4-5 weeks and thereafter he went abroad where he was doing labour job. In the years 1992 and 1994, the respondent visited India for four weeks each and during this period, the appellant did not behave properly with him. Her behaviour towards the respondent and his family members was very cruel. The appellant flatly refused to accompany the respondent to Germany and she pressed the respondent to return back and settle in India. She threatened the parents of the respondent to commit suicide and to falsely implicate them in criminal cases. On 9.5.1994 and 14.5.1994, a panchayat was convened in which the father and brother of the appellant assured that she would live peacefully with the parents of the respondent and would behave properly. A writing to this effect was made by the appellant which was verified by her father. In the years 1995, 1998, 1999 and 2000, the respondent visited India but the appellant refused to cohabit with him as his legally wedded wife and since then she had deserted the respondent without any reason. In the month of October 2000, the respondent again visited India. On 30.10.2000, the appellant had clearly refused to afford her company and co-habitation inspite of repeated requests made by the respondent. The respondent left India in the month of November, 2000 and had gone to Germany. The appellant again behaved with the parents of the respondent in cruel manner. Thereafter, the respondent came back to India on 15.12.2001 after getting visa and tried his level best to solve the problems amicably but the appellant refused to do so and also refused to cohabit with the respondent and to live with him as his legally wedded wife. Accordingly, the respondent filed a petition under Section 13 of the Act for dissolution of marriage between the parties by a decree of divorce. The said petition GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -3- was contested by the appellant-wife by filing a written statement. Besides raising various preliminary objections, it was pleaded that the respondent had assured the appellant that he would take her with him to Germany. He did not obtain passport and visa of the appellant inspite of her repeated requests. The respondent had entered into marital relations with one lady residing in Germany who had also accompanied the respondent in India. The respondent had been demanding dowry and now manipulating a false story to get rid of the appellant. The appellant had been serving the parents of the respondent but after filing of the divorce petition, the parents of the respondent attempted to kill the appellant by pouring kerosene and Promila sister of the respondent attempted to set the appellant on fire on 18.5.2001. Thus, the appellant was compelled to leave the matrimonial home with Neerabh the son of the parties to save their life and took shelter in her parental home. A criminal complaint under Sections 406/498-A/494 of the Indian Penal Code was filed at Karnal Court. The parents of the respondent were earlier happy with the services rendered by the appellant but after filing of the divorce petition by the respondent, their attitude towards the appellant had been changed and the appellant was subjected to cruelty in order to get rid of the appellant and her son. Even the respondent and his parents did not join the marriage of the brother of the appellant held on 7.12.2000 inspite of invitation and personal request by the parents of the appellant. The other averments made in the petition were denied and a prayer for dismissal of the same was made. The respondent filed replication controverting the averments made in the written statement and reiterating those made in the petition. From the pleadings of the parties, the court below framed the following issues:- GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -4-
1. Whether the respondent has treated the petitioner with cruelty, if so to what effect? OPP
2. Whether the petitioner has no cause of action to file the present petition? OPR
3. Relief.
3. In support of his case, the respondent appeared as PW1 and had examined his father Suran Singh as PW2. On the other hand, the appellant herself appeared as RW1 and had examined her father Madan Lal as RW2.
4. The trial court on appreciation of evidence led by the parties, decided issue No.1 in favour of the respondent and against the appellant holding that the appellant had treated the respondent with cruelty. Issue No.2 was decided against the appellant. Accordingly, the trial court vide judgment and decree dated 19.8.2004 allowed the divorce petition filed under Section 13 of the Act by the husband by passing a decree of divorce. Hence, the present appeal.
5. Learned counsel for the appellant submitted that the divorce petition was filed just to get rid of the appellant as the respondent had already contracted a second marriage with a German lady. It was further submitted that the writing, Ex.P1 was obtained by the respondent by using undue influence upon her. It was urged that no cogent evidence regarding cruelty meted out to the respondent was produced but the trial court has wrongly granted a decree of divorce.
6. On the other hand, learned counsel for the respondent besides supporting the judgment and decree passed by the trial court submitted that the writing, Ex.P1 bears the signatures of the appellant and her father voluntarily. It was contended that the appellant did not GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -5- allow him to cohabit with her and in the month of May, 2001, she forcibly took the child with her without any intimation to him and his parents and left the matrimonial home. It was urged that the allegations made in the criminal complaint were found to be false and the respondent was acquitted vide order dated 12.12.2013 in the criminal complaint filed by the appellant.
7. After hearing learned counsel for the parties, we do not find any merit in submissions made by the learned counsel for the appellant.
8. Section 13(1)(ia) of the Act empowers the Court to dissolve the matrimonial ties between the parties by a decree of divorce on a petition by either spouse where the said spouse has been treated with cruelty after the solemnization of the marriage. Cruelty has not been defined in the Act but various pronouncements of the Apex Court and other High Courts have outlined the scope of the term 'cruelty'. Cruelty is evident where one spouse treats the other and manifests such feelings towards him or her as to cause reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental. Whether a spouse is inflicted with physical cruelty or not, it can be judged on the basis of direct evidence whereas mental cruelty is to be inferred on analyzing the factual matrix of each case and drawing conclusion thereon.
9. The Apex Court in Parveen Mehta v. Inderjit Mehta 2002 (3) RCR (Civil) 529 had very elaborately analyzed the expression 'cruelty' as a ground of divorce under the Act. The relevant portion thereof reads thus:-
"Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -6- cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been 'conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger.
XX XX XX
XX XX XX
21. 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 him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. 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 GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -7- other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
10. Further, setting out illustrative cases of mental cruelty, the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 had held as under:-
"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 GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -8- 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 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 GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -9- 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.
(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 GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -10- 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."
11. Examining the factual matrix herein, it may be noticed that the writing, Ex.P1 dated 14.5.1994 shows that the appellant had given threats to commit suicide and the said fact was admitted by her in the presence of her brother and father. Even the appellant and her father while deposing as RW1 and RW2, respectively, had no where alleged that their signatures had been obtained by force on Ex.P1. There is admission of the appellant in her statement that she had been behaving well with the family members of the respondent after the writing Ex.P1 was executed. In other words, it could be reasonably inferred that before the execution of Ex.P1, the behaviour of the appellant towards the family members of the respondent was not proper. The appellant while appearing as RW1 had admitted that she had tried to commit GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -11- suicide when the respondent came with a German lady and disclosed that she was his wife. Thus, the cumulative effect of the facts and circumstances point out to an irresistible conclusion that the respondent was treated with mental cruelty. The relevant findings recorded by the trial court read thus:-
"I have taken into consideration the above arguments and have gone through the evidence available on the file and the case law produced by counsel for the parties. These are admitted facts that the petitioner and respondent got married on 12.12.89 and out of their wedlock a male child was born in the year 1991. As per averments in the petition, the petitioner was at Germany when he was married. Now the question is whether the respondent has treated the petitioner with cruelty. Document placed on record Ex.P1 which was signed by the respondent and her father shows that said document was scribed on 14.5.1994 in which this fact has been admitted that Veena had given threats to commit suicide. She has admitted this fact in the presence of her brother and father. It was also agreed that she will not leave her in-laws' house without the permission of her in-laws and it was also agreed that if there will be any complaint after that, the parents of the respondent will not support her. From this document coupled with the oral testimony of RW1 Veena where she has admitted this fact that she has tried to commit suicide when the petitioner came GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -12- with a lady of Germany and disclosed that she is his wife. But this fact was not mentioned in Ex.P1. It is admitted by respondent that Ex.P1 scribed during the period when the petitioner came with that lady of Germany. Respondent Veena Devi and her father while appearing in the witness box as RW1 and RW2 respectively has no where stated that their signatures have been obtained on document Ex.P1 forcibly. Rather RW1 Veena Devi in her cross-examination stated that she and her father signed Ex.P1 voluntarily. Apart from this, respondent has admitted this fact that after writing Ex.P1, she has behaved well within the family members of the petitioner. In her cross-examination she has admitted the contents of writing Ex.P1. It means that before the existence of document Ex.P1, the behaviour of the respondent towards family members of the petitioner was not proper. Apart from this, respondent has no where stated in her statement that she has cohabited with the petitioner when he came to India. Case law referred by counsel for the petitioner Smt. Nalini Sunder vs. G.V. Sunder (Supra) to this effect that the cruelty can be both physical as also mental. As per the law laid down in case Balwinder Kaur vs. Bhajan Singh (supra), one act of cruelty is enough to grant a decree of divorce. Even the case law is to this effect that when the wife threatened to commit suicide, the GURBACHAN SINGH 2015.02.04 11:35 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-213 of 2004 -13- petitioner is entitled for divorce as laid down in case law Smt. Rajni vs. Sanjay Kumar 2003(2) Marriage & Divorce Judicial Reports 553 and same view has been taken in case Smt. Parkash vs. Harbhagwan Dass (supra)."
12. Learned counsel for the appellant was unable to demonstrate that there was any error or perversity in the findings recorded by the trial court being based on misappreciation or misreading of evidence which may warrant interference by this Court. Accordingly, the trial court finding sufficient evidence that the respondent and his family members were treated with cruelty by the appellant rightly granted divorce in favour of the respondent. Consequently, finding no merit in the appeal, the same is hereby dismissed.
(AJAY KUMAR MITTAL)
JUDGE
December 3, 2014 (SNEH PRASHAR)
gbs JUDGE
GURBACHAN SINGH
2015.02.04 11:35
I attest to the accuracy and
authenticity of this document
High Court Chandigarh