IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 31.03.2011
Judgment delivered on: 15.07.2011
+ FAO 159/2001
Shri Amar Lal Arora ......Appellant.
Through: Mr.P.S.Kem, Advocate.
Vs.
Smt.Shashi Bala ......Respondent
Through: Mr.K.P.Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J.
*
1. By this appeal filed under Section 28 of the Hindu
Marriage Act, 1955 the appellant husband seeks to challenge
FAO 291/96 Page 1 of 35
the judgment and decree dated 05.02.2001 passed by the
learned trial court whereby the divorce petition filed by the
appellant herein under Section 13 (1) (ia) & (ib) of the Hindu
Marriage Act was dismissed.
2. Brief facts of the case relevant for deciding the
present appeal are that the marriage between the parties was
solemnized on 13.02.1987 according to Hindu rites and
ceremonies and a daughter ‘Gudia’ was born from the
wedlock on 5.1.1988 . The case set up by the appellant in the
divorce petition was that the respondent was under the
influence of her parents right from the beginning of the
marriage and her parents interfered in their affairs. It was
also alleged that the respondent never showed happiness in
residing with the appellant and never fulfilled her matrimonial
obligations. It was also the case of the appellant that the
respondent avoided normal sexual life with the appellant and
thereby caused mental agony to him. It was also stated that
the respondent left for her parental home on 13.12.1987 on
the pretext of attending a marriage of some relation and when
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the appellant went to bring her back to the matrimonial home
on 20.12.1987 her parents refused to send her back with him.
The appellant again went to bring back the respondent on
23.12.1987 and also on 25.12.1987 along with his father,
maternal uncle and two other relations and requested the
parents of the respondent to send her but they refused. It was
also alleged that the respondent herself also insulted and ill
treated them. According to the appellant, when the daughter
was born, he was not allowed to see her and was threatened
to be killed. The appellant wrote letters dated 12.3.88,
16.3.88 and 25.3.88 requesting the respondent to re-join the
matrimonial home but she refused. The appellant, therefore,
filed a petition under Section 9 of the Hindu Marriage Act,
1955 for restitution of their conjugal rights and a compromise
was arrived at between the parties and the respondent re-
joined the matrimonial home on 27.7.89 but the respondent
did not mend her behaviour and that she became more cruel
and violent and started insulting and humiliating him
frequently and also did not take interest in the household
FAO 291/96 Page 3 of 35
affairs and finally left the matrimonial home on 30.9.89. The
appellant has also alleged that he was threatened of dire
consequences to his life as well as that of his relations on
various dates i.e. on 1.10.89, 6.4.91 and in fact was
implicated in a criminal case under Section 498-A/406 IPC. It
has also been alleged by the appellant that the police did not
take any action against the respondent and her family
members on his complaint and the respondent failed to join
the matrimonial home despite his repeated requests and in
this manner she willfully ill-treated him and finally deserted
him. The appellant thus filed a petition for divorce on the
ground of cruelty and desertion which vide judgment and
decree dated 5.2.01 was dismissed and feeling aggrieved with
the same, the appellant has preferred the present petition.
3. The petition was contested by the respondent wife
and she claimed that just after about one and half month of
marriage, the appellant and his parents started raising
demands for colour T.V, scooter and cash of Rs.20,000/- and
as her parents could not meet the said demands ,therefore the
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appellant and his family members started ill-treating her, beat
her and threatened her of dire consequences and made her
life hell. As per the respondent, she wrote to her parents
about her miserable condition vide letters dated 2.6.87 and
11.6.87 and 13.6.87. It was further claimed by the respondent
that she was severely beaten and thrown out of the
matrimonial home on 29.6.87 and that efforts for
compromise/reconciliation were made and in December, 1997
a ‘Biradari’ meeting was held in which it was settled that the
appellant would take her to the matrimonial home after 40
days of delivery. The respondent further alleged that the
appellant did not take her back to the matrimonial home even
after 40 days of delivery of the child on 5.1.88 and that the
family members of the appellant demanded that her entire
salary be accounted for the period she stayed at her parental
home. It was also alleged that the appellant and his family
members did not come to see her and the baby child even
after due intimation. It was also alleged by the respondent
that it was the meanness and greediness of the appellant’s
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family which made her life hell and she was not allowed to
enter the matrimonial home after being kicked out on 29.6.87.
The respondent also alleged that after 2 days of her rejoining
the matrimonial home she was beaten and humiliated and was
pushed out of the matrimonial home with the allegations that
she was not capable of giving birth to male child.
4. Based on the above pleadings of the parties, the learned
trial court framed the following issues:-
“(i) Whether the respondent treated the appellant with
cruelty? OPP
(ii) Whether the respondent has deserted the appellant for
a continuous period of two years before filing the
petition? OPP
(iii) Whether the appellant is entitled to the relief prayed
for? OPPIn support of his case, the appellant examined himself as PW-
1 besides examining his friend Shri Chander Shekhar Bhatia
as PW-2. The respondent, on the other hand, examined only
herself as RW-1 in support of her case.
FAO 291/96 Page 6 of 35
5. The learned trial court on both the abovesaid
issues returned findings against the appellant and in support
of the respondent. On issue no.1 the learned trial court found
that the appellant alone had been ill-treating, harassing and
beating the respondent and threw her out of the matrimonial
home. The trial court also found that the appellant had
taken a false stand in the petition as well as in his evidence
claiming that the respondent had left the matrimonial home
on 30.9.89. The learned trial court further found that the
letter written by the respondent and proved on record as
Ex.PW1/1 instead of helping the case of the appellant
supports the defence of the respondent who claimed that she
was ready to join the appellant in her matrimonial home and
she had wanted the appellant to visit her to take her back to
the matrimonial home. The learned trial court further found
that the statement and the undertaking given by the appellant
in the proceedings filed by him under Section 9 of the Hindu
Marriage Act clearly proved that his behaviour was not
proper otherwise he would not have given such an
FAO 291/96 Page 7 of 35
undertaking before the Court to keep the respondent happy
and to maintain a congenial atmosphere in the home. The
trial court also found the stand of the appellant claiming
desertion of matrimonial home by the respondent on 13.12.87
as false and believed the version of the respondent of being
thrown out of her matrimonial home on 24.9.89 and that the
appellant treated the respondent with cruelty.
6. On Issue no. 2, the learned trial court from the
record found that it is clear that the respondent never
intended to leave the matrimonial home and she always
wanted to stay with the appellant but only wanted to protect
her self respect and to be treated well in her matrimonial
home. The trial court also found that the appellant did not
make any efforts to improve the atmosphere in the
matrimonial home despite his undertaking given by him in the
proceedings under Section 9 of the Hindu Marriage Act,
which made it clear that the intention of the appellant was to
bring cohabitation permanently to an end. It observed that
the respondent had reasonable cause for not returning to the
FAO 291/96 Page 8 of 35
matrimonial home and thus decided the issue in favour of the
respondent.
7. Assailing the said judgment and decree of the
learned trial court, Mr. P.S. Kem, learned counsel for the
appellant vehemently argued that the appellant had duly
proved his case by sufficiently proving cruelty on the part of
the respondent and also the willful act of the respondent of
deserting him with an intention to permanently bring
cohabitation to an end, but still the learned trial court
ignoring the evidence led by the appellant dismissed the
divorce petition filed by the appellant. Counsel also argued
that it is an admitted case between the parties that the
respondent had not shown any interest to join the company of
the appellant, since September, 1989 and this by itself is a
sufficient ground to dissolve the marriage between the parties
as there was no possibility of reunion of the parties after such
a long separation of about 22 years. Counsel further argued
that the appellant also paid an amount of Rs.3 lacs towards
compensation in compliance of the order dated 27.11.2004
FAO 291/96 Page 9 of 35
passed by the learned sessions court in proceedings under
section 406/498A. Counsel further submitted that the
respondent had also made a complaint about the conviction of
the appellant in the office of the appellant and due to that the
appellant was removed from his service w.e.f. April, 2001 by
his employer and since then he is unemployed and facing
several civil/criminal cases and struggling for employment.
Counsel also argued that the respondent was under the
tremendous influence of her parents who frequently caused
interference in the matrimonial home to create a wedge
between them. Counsel further submitted that the
respondent left the matrimonial home on 30.9.89 after she
had left for her office and did not return back without
disclosing any reasons. Counsel further argued that the
appellant made all efforts earlier on 20.12.87 and 23.12.87
and then on 25.12.87 so as to bring the respondent to the
matrimonial home but all in vain. Counsel also placed
reliance on the letter written by the respondent proved on
record as Ex.PW1/1 before the trial court, wherein she had
FAO 291/96 Page 10 of 35
duly admitted at least one visit of the appellant to her
parental house to bring her back. Counsel further argued that
the respondent had used abusive language in the said letter
and had even admitted causing insult to the maternal uncle
and the father of the appellant. Counsel also relied upon the
various complaints made by the appellant with the local police
from time to time against the respondent and her family
members which were placed on record before the trial court
(marked as Mark A to P) to demonstrate the cruel behaviour
of the respondent. Counsel also took exception to the
agonizing remarks made by the respondent attributing
impotency and lack of sexual strength to satisfy the
respondent in para 26 of her written statement. Counsel also
argued that in fact the respondent had impliedly agreed to the
grant of divorce by referring to para 40 of the written
statement and prayed that the marriage between the parties
be dissolved. Counsel also took exception to the disparaging
remarks made by the respondent in her two letters dated
4.8.89 and 21.8.89, disrespecting the judiciary and the legal
FAO 291/96 Page 11 of 35
fraternity. Counsel further argued that the animus deserendi
on the part of the respondent can alone be established by the
fact that she had made a single complaint to the police on
12.12.89, whereafter she had not responded to the attempts
made by the local police on the various complaints made by
the appellant. The counsel also submitted that the learned
trial court has arrived at contradictory findings as on one
hand it has held that the relations between the parties were
not cordial at all and on the other hand holding that no
cruelty was committed by the respondent against the
appellant, which is against the facts and circumstances of the
case. Based on the above submissions, counsel submitted that
the judgment passed by the learned trial court is based on
surmises and conjectures and the same is not sustainable in
the eyes of law.
8. Mr.K.P.Gupta, learned counsel for the respondent,
on the other hand, supported the findings given by the
learned trial court and submitted that no infirmity, illegality
or perversity can be found in the said findings arrived at by
FAO 291/96 Page 12 of 35
the learned trial court and the appeal filed by the appellant is
liable to be dismissed. Counsel further argued that the
appellant and his family members started ill treating the
respondent from the very inception of the marriage on
account of her bringing insufficient dowry and also because
of persistent demands made by them for colour T.V., scooter
and cash amount of Rs.20,000/-. Counsel further submitted
that the respondent vide her letters dated 2.6.87, 11.6.87 and
13.6.87 duly apprised her parents of the pathetic and painful
conditions under which she was living at the matrimonial
home. Counsel also submitted that the respondent was
thrown out of the matrimonial home on 29.6.87 after she was
severely beaten. Counsel also argued that the female child
was born out of the wedlock on 5.1.88, but despite the
decision taken in the meeting of the Biradari, the appellant
did not take the respondent back to the matrimonial home
after expiry of 40 days from the date of the delivery as was
agreed by him. Counsel further argued that the respondent
had joined the matrimonial home on 27.7.88 after the
FAO 291/96 Page 13 of 35
appellant had given an undertaking to improve his behaviour
before the matrimonial court in the proceedings under
Section 9 of the Hindu Marriage Act but again the
respondent was treated very rudely and the dowry demands
were raised by the appellant and his family members and
ultimately the respondent was again thrown out of the
matrimonial home on 24.9.89. Counsel further submitted that
because of the said ill treatment meted out to the respondent
by the appellant and his family members, the respondent was
compelled to lodge a complaint with the Crime Against
Women Cell, which ultimately led to registration of an FIR
bearing No. 202/90. Counsel also submitted that the appellant
was convicted for the offences punishable under Section 498A
and 406 IPC and even his mother, brother and maternal uncle
were convicted. Counsel also submitted that in fact the
appellant had already married another women with the name
of Smt. Madhu Bala, on 22.5.93, and even a son named
Anurag was born out of the said wedlock of the appellant with
the said woman on 10.10.95. Counsel also submitted that the
FAO 291/96 Page 14 of 35
respondent has also filed a complaint under Section 494 IPC
and the appellant is facing trial before the concerned
Metropolitan Magistrate. Counsel further submitted that the
respondent had never refused to join the company of the
appellant but could not do so because of the ill treatment
meted out to her by the appellant and his parents. Counsel
thus submitted that the learned trial court has rightly given
the findings and the impugned judgment and decree deserves
to be upheld.
9. I have heard learned counsel for the parties at
considerable length and given my serious consideration to the
pleas raised by them.
10. The appellant had filed a petition to seek divorce
on the grounds of both cruelty as well as desertion and on
both the said grounds the learned trial court has given the
findings against the appellant and in favour of the respondent,
ultimately dismissing his petition. The appellant has filed
detailed written submissions but surprisingly the appellant
FAO 291/96 Page 15 of 35
has failed to point out as to how the findings given by the
learned trial court on both the issues can be faulted with.
11. On the Issue no.1, dealing with the ground of
cruelty, learned trial court found that it was the case of the
appellant that his relationship with the respondent remained
cordial up to 13.12.87, then how come in his complaint dated
6.10.89, made by him to the Deputy Commissioner of Police,
he could allege that he had to face mental agony caused by
the behaviour and perpetual threats of dire consequences
during the stay of the respondent at the matrimonial home
from the day of his marriage with the respondent till she left
the house on 13.12.87. The trial court thus found that the
relationship between the parties was not cordial at all as
opposed to what was claimed by the appellant. The trial court
found that the ill treatment of the respondent at the hands of
the appellant and his family members was well reflected
through the letters dated 2.6.87, 11.6.87 and 13.6.87 sent by
the respondent to her parents and in the background of these
letters, the trial court also believed the version of the
FAO 291/96 Page 16 of 35
respondent wherein she stated that she was beaten and
thrown out of the matrimonial home on 29.6.87. The trial
court also took note of the suggestion given by the appellant
himself to the respondent in her cross-examination
suggesting that she did not remain in the matrimonial home
from 29.6.87 to July, 1989. The trial court further placed
reliance on the contents of the letter addressed by the
respondent to the appellant which was placed on record by
the appellant himself and proved as Ex.PW1/1, to which the
trial court referred in detail and then came to the
conclusion that from the said letter it is clear that the
respondent was always willing and ready to join the
appellant at the matrimonial home but she had only wanted
that the appellant should come and take her back to the
matrimonial home. It is evident that the appellant has not
given any explanation to rebut the contents of the said letter
or the truthfulness of the same either before the trial court or
before this court and a bare perusal of the said letter clearly
shows that the appellant even lacked courage to tell his
FAO 291/96 Page 17 of 35
mother that he had gone to the parental house of the
respondent so as to bring her back to the matrimonial home.
The letter also clearly reflects the greedy nature of the
mother of the appellant who wanted the respondent to give
her complete account for the salary received by her during
the said period of eight months, besides raising a demand of
Rs.80,000/- from the respondent.
12. The trial court further placed reliance on the
statement given by the appellant in Section 9 HMA
proceedings wherein he undertook that he shall behave
properly and keep the respondent happy and maintain a
congenial atmosphere in the matrimonial home. This court
does not find fault in the observation of the trial court that
had the behaviour of the appellant been good, then he
would not have given such an undertaking before the court.
The trial court also found that the appellant has taken a false
stand with regard to the actual date on which the respondent
had finally left the matrimonial home. In the petition the
appellant claimed the date of the respondent leaving the
FAO 291/96 Page 18 of 35
matrimonial home to be of 30.9.89 and then in his statement
he gave two dates i.e. 24.9.89 and 30.9.89. The appellant also
had also on occasion stated that the respondent was residing
in the matrimonial home till 30.9.1989, till the time she left to
attend the marriage of some relative and that it is only after
that she had left the matrimonial home.
13. Now, testing the allegations of appellant on the
parameters of cruelty as required by the Act. The concept of
‘cruelty’ has not been defined in it but has been discussed in a
plethora of judgments given by the Hon’ble Apex Court and
also by the various High Courts, but no precise or one
comprehensive definition of cruelty can be laid down as the
incidents complained of as amounting to ‘cruelty’ in one case
may not be so in other case. Primarily, it is the social,
economic, cultural and educational background of the parties
that plays a role in determining if the conduct complained of
amounts to cruelty, besides the temperamental behaviour,
greed and inflated egos of the parties which also more often
than not contribute to a large extent to aggravate mental
FAO 291/96 Page 19 of 35
tension between the parties. It would be relevant here to
discuss some landmark judicial pronouncements in this
regard. The Hon’ble Apex Court has dealt with the said
concept of cruelty in great detail in the case of Samar Ghosh
Vs. Jaya Ghosh (2007)4SCC511 and after gauging the
judicial trend of various countries has given a treatise on the
subject and enumerated some of the instances of human
behaviour which can be considered as amounting to cruelty.
The same is reproduced as under:
“74. No uniform standard can ever be laid down for guidance, yet we
deem it appropriate to enumerate some instances of human behavior
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 degree that it makes the married life for the other spouse
absolutely intolerable.
FAO 291/96 Page 20 of 35
(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 behavior 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 behavior 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.
FAO 291/96 Page 21 of 35
(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.”
The incidents as enumerated above are not exhaustive. The
legal position starting from the celebrated pronouncement of
Dastane vs Dastane AIR 1975SC1534 to V Bhagat vs D Bhagat
AIR 1994 SC710, the position that emerged was that mental
cruelty can be defined broadly as the conduct that inflicts
upon the other party such mental pain and suffering as would
make it impossible for parties to live with each other. The
position was further clarified by the time of A Jayachandra vs.
Aneel Kaur AIR 2005SC534, where the court held that the
conduct should be judged with regard to the upbringing,
educational and social background of the parties. It would be
relevant to reproduce the extract of the said judgment here:
“10. The expression “cruelty” has not been defined in the Act.
Cruelty can be physical or mental. Cruelty which is a ground for
dissolution of marriage may be defined as willful and unjustifiable
conduct of such character as to cause danger to life, limb or health,
bodily or mental, or as to give rise to a reasonable apprehension of
such a danger. The question of mental cruelty has to be considered
in the light of the norms of marital ties of the particular society to
which the parties belong, their social values, status, environment in
FAO 291/96 Page 22 of 35
which they live. Cruelty, as noted above, includes mental cruelty,
which falls within the purview of a matrimonial wrong. Cruelty need
not be physical. If from the conduct of his spouse same is
established and/or an inference can be legitimately drawn that the
treatment of the spouse is such that it causes an apprehension in the
mind of the other spouse, about his or her mental welfare then this
conduct amounts to cruelty. In delicate human relationship like
matrimony, one has to see the probabilities of the case. The concept,
a 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.
Therefore, one has to see what are the probabilities in a case and
legal cruelty has to be found out, not merely as a matter of fact, but
as the effect on the mind of the complainant spouse because of the
acts or omissions of the other. Cruelty may be physical or corporeal
or may be mental. In physical cruelty, there can be tangible and
direct evidence, but in the case of mental cruelty there may not at
the same time be direct evidence. In cases where there is no direct
evidence, Courts are required to probe into the mental process and
mental effect of incidents that are brought out in evidence. It is in
this view that one has to consider the evidence in matrimonial
disputes.
11. The expression ‘cruelty’ has been used in relation to human
conduct or human behavior. It is the conduct in relation to or in
respect of matrimonial duties and obligations. Cruelty is a course or
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 in determining it. It is a
question of fact and degree. If it is mental, the problem presents
difficulties. First, the enquiry must begin as to the nature of 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. However, there
may be a case where the conduct complained of itself is bad enough
and per se unlawful or illegal. Then the impact or 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.”
FAO 291/96 Page 23 of 35
The Supreme court thus with the passage of time developed
the factors that have to be considered while granting a decree
of divorce on the ground of cruelty. In another landmark
judgment of Naveen Kohli vs. Neelu Kohli AIR2006SC1675 ,
the court held that the conduct complained of should be grave
and weighty and should touch a certain pitch of severity. It
should be something much more than the ordinary wear and
tear of married life. It would be pertinent to reproduce the
relevant para of the said judgment here:
“56. To constitute cruelty, the conduct complained of should be “grave
and weighty” so as to come to the conclusion that the petitioner 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”.
The conduct taking into consideration the circumstances and background
has to be examined to reach the conclusion whether the conduct
complained of amounts to cruelty in the matrimonial law. Conduct has to
be considered, as noted above, in the background of several factors
such as social status of parties, their education, physical and mental
conditions, customs and traditions. It is difficult to lay down a precise
definition or to give exhaustive description of the circumstances, which
would constitute cruelty. It must be of the type as to satisfy the
conscience of the Court that the relationship between the parties had
deteriorated to such extent due to the conduct of the other spouse that
it would be impossible for them to live together without mental agony,
torture or distress, to entitle the complaining spouse to secure divorce.
Physical violence is not absolutely essential to constitute cruelty and a
consistent course of conduct inflicting immeasurable mental agony and
torture may well constitute cruelty within the meaning of Section 10 of
the Act. Mental cruelty may consist of verbal abuses and insults by using
filthy and abusive language leading to constant disturbance of mental
peace of the other party.
FAO 291/96 Page 24 of 35
57. The Court dealing with the petition for divorce on the ground of
cruelty has to bear in mind that the problems before it are those of
human beings and the psychological changes in a spouse’s conduct have
to be borne in mind before disposing of the petition for divorce.
However, insignificant or trifling, such conduct may cause pain in the
mind of another. 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. It has to be considered whether the
complainant should be called upon to endure as a part of normal human
life. Every matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations, quarrels
between spouses, which happen in day-to-day married life, may also not
amount to cruelty. Cruelty in matrimonial life may be of unfounded
variety, which can be subtle or brutal. It may be words, gestures or by
mere silence, violent or non-violent.”
In a recent case of Gurbax Singh Vs. Harminder Kaur,
AIR 2011 SC 114 the Apex Court held that the
matrimonial life should be assessed as a whole and few
isolated instances over a period of time cannot be said to be
amounting cruelty. It thus held that :
“11. A Hindu marriage solemnized under the Act can only be
dissolved on any of the grounds specified therein. We have already
pointed out that in the petition for dissolution of marriage, the
appellant has merely mentioned Section 13 of the Act and in the
body of the petition he highlighted certain instances amounting to
cruelty by the respondent-wife. Cruelty has not been defined under
the Act. It is quite possible that a particular conduct may amount to
cruelty in one case but the same conduct necessarily may not
amount to cruelty due to change of various factors, in different set of
circumstances. Therefore, it is essential for the appellant, who claims
relief, to prove that a particular/part of conduct or behaviour
resulted in cruelty to him. No prior assumptions can be made in such
matters. Meaning thereby that it cannot be assumed that a particular
conduct will, under all circumstances, amount to cruelty, vis-a-vis
the other party. The aggrieved party has to make a specific case that
the conduct of which exception is taken amounts to cruelty. It is trueFAO 291/96 Page 25 of 35
that even a single act of violence which is of grievous and
inexcusable nature satisfies the test of cruelty. Persistence in
inordinate sexual demands or malpractices by either spouse can be
cruelty if it injures the other spouse. There is no such complaint by
the appellant. In the case on hand, as stated earlier, the appellant
has projected few instances in which, according to him, the
respondent abused his parents. We have verified all the averments in
the petitions, reply statement, written submissions as well as the
evidence of both parties. We are satisfied that on the basis of such
instances, marriage cannot be dissolved.
12. The married life should be assessed as a whole and a few
isolated instances over certain period will not amount to cruelty. The
ill-conduct must be precedent for a fairly lengthy period where the
relationship has deteriorated to an extent that because of the acts
and behaviour of a spouse, one party finds it extremely difficult to
live with the other party no longer may amount to mental cruelty.
Making certain statements on the spur of the moment and
expressing certain displeasure about the behaviour of elders may not
be characterized as cruelty. Mere trivial irritations, quarrels, normal
wear and tear of married life which happens in day to day life in all
families would not be adequate for grant of divorce on the ground of
cruelty. Sustained unjustifiable and reprehensible conduct affecting
physical and mental health of the other spouse may lead to mental
cruelty.”
As would be seen from the import of the said judgments, no
specific parameters or straight jacket formula can be laid
down to determine as to what acts of an offending spouse
would constitute cruelty to the other spouse in a given case.
14. It is also an elementary principle of law that the
petitioner approaching the court has to establish his/her case
through documentary or oral evidence so as to satisfy the
conscience of the Court to believe his/her case for the grant of
FAO 291/96 Page 26 of 35
claimed decree. It is also again a settled legal position that in
matrimonial proceedings, the petitioner is not required to
establish the case beyond reasonable doubt like in criminal
trials but is based on the preponderance of probabilities.
(Dastane vs.Dastane (supra))
15. Applying the aforesaid principles of law to the facts
of the case at hand, this court does not find that the appellant
has succeeded in establishing any act of mental cruelty
committed by the respondent which could entitle the
appellant to grant of a divorce as envisaged under Section
13(1) (ia) of the Hindu Marriage Act. The appellant has also
not produced any evidence to support his case except
producing his friend i.e. Chander Singh as PW-2 who because
of his disputing even the basic facts which were otherwise
admitted by the parties ,with regard to the date of marriage,
etc was found to be most unreliable and untrustworthy by the
learned trial court and even otherwise the said witness has
not testified any fact which could strengthen the case of the
appellant for the grant of decree of divorce on the ground of
FAO 291/96 Page 27 of 35
cruelty. The plea of the counsel for the appellant that the
decree of divorce should be granted in favour of the appellant
since he has already paid an amount of Rs.3 lacs as
compensation to the respondent deserves outright rejection
as the said payment by the appellant has no relation with the
said divorce case filed by the appellant on independent
grounds. The decree of divorce can also not be granted in
favour of the appellant simply because the parties have been
living separately for a period of 22 years as the legislature
has yet to introduce the ground of irretrievable break down
of marriage in the Hindu Marriage Act for the grant of
divorce and in the absence of the same the decree of divorce
cannot be granted merely on account of separation of the
parties for such a long period. The appellant in his written
submissions has also introduced some new grounds that is
of respondent using abusive and vulgar language against the
mother of the appellant in her letter Ex.PW 1/1 and also
stigmatizing the appellant with the allegation of impotency in
para 26 of the written submission but the same cannot be
FAO 291/96 Page 28 of 35
appreciated as the appellant in his evidence has not made
any deposition to complain them as acts of mental cruelty
caused by the respondent. So far the grievance raised by the
counsel for the appellant that the respondent has caused slur
upon the judiciary as well as on the legal fraternity in her two
said letters also cannot help the case of the appellant,
although this court deprecates the intemperate language used
by the respondent in her said two letters against the
concerned judge and also against the counsel for the
appellant. The appellant has also not been able to impeach or
discredit the contents of letters dated 2.6.87, 11.6.87 and
13.6.87 written by the respondent to her parents and there is
no reason to disbelieve the contents of the said letters as they
appear to have been written in the normal course that too
when the respondent was at the matrimonial home. Further
the contents of the letter Ex. PW1/1 also goes against the
appellant as the same clearly shows that the appellant was
under the influence of his parents especially his mother and
he did not have even the courage to tell his mother that he
FAO 291/96 Page 29 of 35
had gone to the parental house of the respondent to bring her
back to the matrimonial home. So far the allegation of the
appellant that he made due efforts on 20.12.87, 23.12.87 and
15.12.87 to bring the respondent back to the matrimonial
home it would be suffice to mention that the respondent was
at her advance stage of pregnancy and therefore there was
nothing wrong on the part of the respondent if she did not
return to join the matrimonial home at that stage. The
undertaking given by the appellant in Section 9 proceedings
further proves the fact that the behaviour of the appellant
towards the respondent was not proper during the period she
had stayed at her matrimonial home.
16. Based on the above discussion, this court does not
find any illegality or perversity in the findings given by the
learned trial court on the Issue no.1.
17. Coming to Issue no.2, in the case of desertion, the
petitioner has to establish as far as the deserting spouse is
concerned, two things. One is the factum of separation and
FAO 291/96 Page 30 of 35
secondly the animus deserendi, that is the intention of the
deserting spouse to bring the cohabitation permanently to
end. With regard to the deserted spouse, it has to be proved
that there was absence of consent and that there was absence
of conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention to bring
the cohabitation to end permanently. It is a settled legal
position that desertion is a matter of inference to be drawn
from the facts and circumstance of each case and the
conditions in the section that the deserting spouse should
have deserted the petitioner for a continuous period of not
less than two years immediately preceding the presentation of
the petition have to be fulfilled. The explanation attached to
the said section states that the spouse should desert the
petitioner without reasonable cause and includes the willful
neglect of the petitioner by the other party to the marriage.
18. Adverting to the facts of the case at hand, the
petitioner appellant has not been able to prove the animus
deserendi on the part of the respondent wife. There is nothing
FAO 291/96 Page 31 of 35
proved on record to state that the respondent wife did not
want to join the company of the appellant. Rather from the
letter of the respondent proved on record it can be inferred
that the respondent was willing to join the matrimonial home
if the appellant had gone to get her back, and this has also
been held by the learned trial court. The appellant has also
not proved that there was no consent on his part and that his
conduct was without blemish so as to compel the respondent
wife to leave the matrimonial home. The respondent has put
certain allegations with regard to demand for dowry and that
the attitude of the family of the appellant, more so of the
mother of the appellant, such that she was not interested that
the petitioner stays in the matrimonial home. The learned trial
court also observed that the petitioner lacked the courage to
bring back the respondent wife to the matrimonial home due
to the fear of his mother and rightly so as this is the minimum
which can be expected of the husband and the family
members of the husband is to give due respect to the wife
who enters in a new atmosphere in her matrimonial home. It
FAO 291/96 Page 32 of 35
cannot be forgotten that a girl leaves behind her parents,
home, hearth, loved ones, friends and memories to come to a
new house with new people and atmosphere to begin a
different phase of life with her better half .There may be
difference in life styles, values and educational and social
background of the new house and it is the solemn duty of the
in-laws to give a friendly, amiable, affable and harmonious
environment to give the daughter in law time and space to be
able to adjust and become a part of her new family. The girl
leaving the cocoon of her parental house should be welcomed
with open arms instead of putting up a hostile front and
treating her like an outsider.
19. The learned trial court has held that the appellant
has failed to satisfy that the appellant had made any efforts to
bring the respondent back to her matrimonial home after she
had left the matrimonial home on 24.9.89 or even on 30.9.89.
There is nothing wrong in the observation of the learned trial
court that the appellant did not take any steps to improve the
atmosphere in the matrimonial home despite the undertaking
FAO 291/96 Page 33 of 35
given by him in the petition under Section 9 of the Hindu
Marriage Act. It is also a settled legal position that under
Section 23 of the Hindu Marriage Act, the petitioner
approaching the court cannot take advantage of his/her own
wrongs to claim a decree of divorce. The petitioner alleging
desertion on the other party and seeking divorce on that
ground cannot himself have blameworthy conduct and leave
the spouse, throw her out of the house or compel her to leave
the house due to the conduct of his family and then claim that
that the deserting spouse has withdrawn from the society of
the petitioner. It would be relevant here to reproduce an
except from the judgment in the case of Savitri Pandey vs.
Prem Chandra Pandey (2002)2SCC 73 here:
“In any proceedings under the Act whether defended or not the court
would decline to grant relief to the petitioner if it is found that the
petitioner was taking advantage of his or her own wrong or disability
for the purposes of the reliefs contemplated under Section 23(1) of the
Act. No party can be permitted to carve out the ground for destroying
the family which is the basic unit of the society. The foundation of the
family rests on the institution of a legal and valid marriage. Approach
of the court should be to preserve the matrimonial home and be
reluctant to dissolve the marriage on the asking of one of the parties.”
FAO 291/96 Page 34 of 35
Hence, in the light of the foregoing, this court does not find
any illegality or perversity in the findings of the learned trial
court on the Issue no.2 as well.
20. There is no merit in the present appeal,
accordingly the same is hereby dismissed.
July 15, 2011 KAILASH GAMBHIR, J
dc/mg
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