Appeal from the Original Decree No.449 OF 1998
-------
Against the judgment and decree dated 27th of June,1998
passed by Smt. Rekha Kumari, Principal Judge, Family
Copurt,Patna in Matrimonial (Divorce) Case No. 122 of
1994.
RAJENDRA KRISHNA AGRAWAL, SON OF SHRI BECHAN LAL AGRAWAL,
RESIDENT OF VILLIAGE MAINPURA, P.S. PATLIPUTRA, DISTRICT PATNA
——-APPELLANT.
Versus
SMT.SANDHYA RANI, WIFE OF MR. RAJENDRA KRISHNA AGRAWAL, D/O MR.
VITHAL DAS AGRAWAL, RESIDENT OF OF KARMAN TOLA, FIRST FLOOR OF
M/S. AGRAWAL MACHINERIES, P.S. NAWADAH, ARRAH, DISTRICT BHOJPUR.
——– OPPOSITE PARTY-RESPONDENT.
———–
For the Appellant : Mr. Sandeep Kumar, Advocate.
For the Respondent:… ………………………None
————–
PRESENT
HON’BLE THE ACTING CHIEF JUSTICE
THE HON’BLE DR. JUSTICE RAVI RANJAN
DR . RANJAN, J Appellant- husband, being aggrieved by the judgment and decree
dated 27th of June 1998, passed by Smt. Rekha Kumari, Principal Judge,
Family Court, Patna in matrimonial case no. 122 of 1994 dismissing the
petition under section 13 of Hindu Marriage Act, 1955 , has preferred this
appeal.
The appellant-husband filed Matrimonial Case no.122 of 1994
under section 13 of the Hindu Marriage Act, 1955 for dissolution of his
marriage with the respondent by a decree of divorce. According to the
husband, he was married with the respondent on 12.12.1990 in accordance
with the Hindu rites and customs. However, from the beginning itself the
relationship between the husband and wife remained strained and the wife
only occasionally lived in her matrimonial house or with the husband. Her
behaviour with the appellant-husband as well as his parents was indecent to
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the extent that appellant‟s domestic life became very tense and unpleasant.
According to the appellant-husband, the respondent never paid due regards
to the appellant‟s parents and used to misbehave with the family members
of the appellant . That apart she also never shared any domestic work of the
family. Further allegation by the petitioner-appellant is that the wife is elder
by one year and this fact had been suppressed by her parents at the time of
negotiation of the marriage. Allegation has also been made upon the
respondent having affairs with a person at her native home. However, from
plain reading of the petition for divorce it becomes apparent that the
petitioner-appellant has mainly centered his allegation towards the fact that
the respondent has treated him with cruelty to the extent that his health
broke down, his studies were disrupted and at the end he had to leave his job
also. Case of the appellant-husband is that there was ego problem with the
respondent also as she used to consider herself superior than the appellant.
She used to pass satirical and taunting remarks on the appellant more so
after he became unemployed on loosing his job due to her cruel behaviour.
According to the appellant, the respondent considered herself as very pretty
and often laughed at appellant‟s complexion touching not only the feelings
of the appellant but of all of his family members and making the life of the
appellant bitter and meaningless. The relationship between the husband and
wife became so sour and bitter that the wife herself became determined to
get rid of the husband . According to the appellant at one point of time she
drafted a letter addressing the Chief Justice, Patna High Court but the same
was not sent. Subsequently a joint petition for grant of divorce by mutual
consent was also drafted at instance of the respondent and signed by both
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parties. But due to intervention of the well wishers of the parties the same
was not filed in the court specially as mother-in-law of the appellant assured
that her daughter would mend her ways and behaviour. However, the
respondent continued with her harsh and rude behaviour and continued to
pass sarcastic remarks against the appellant and when the appellant
informed this to his in-laws they instead of advising the respondent to mend
her ways, gave wrong and false information to the local police which came
to the house of the appellant and the respondent left her matrimonial house
with the police. The father of the respondent took her thereafter to Ara
causing insult and embarrassment to the appellant and his family. She again
came back on 30.12.1993 and took away all her belongings as she and her
parents were determined for final desertion and ruining the peace, prestige
and life of the appellant. It is claimed by the appellant in his pleading that
after 30.12.1993 the husband and wife never met each other. According to
him the relationship between them has become so tense that there was no
hope for reconciliation.
The Opposite Party- respondent (wife) rebutted the aforesaid
allegations by filing written statement. According to her, both the appellant
and the respondent used to spend happy marital life at Delhi where the
appellant was employed as an engineer in the Oriental Bank of Commerce,
Delhi. The petitioner-appellant used to visit her when she stayed at her
father‟s place at Ara. She used to stay along with her parents at Ara and
Patna without any resentment or objection. According to her, when she was
at her in-laws house at Patna, some time in 1993, she received message from
the petitioner-appellant that he had left his job at Delhi and is returning
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back to Patna which he ultimately did. This had a great impact on the
marital relationship between the appellant and the respondent. Soon
thereafter, the in-laws and the appellant started ill-treating the respondent.
The reason, according to the respondent, was that the appellant and the in-
laws thought that the marriage with the respondent did not bring good
fortune for the family and the petitioner. There was demand of few lacs of
rupees for starting business also which the parents of the respondent could
not meet. This aggravated the matter and as a result of which maltreatment
of respondent started in a vigorous manner. The wife claims that she was
forced to sign on blank papers which was later utilised for the purposes of
petition of mutual divorce but the same was not acted upon due to
intervention of her parents. Further a complaint was lodged with the
Superintendent of Police Patna by the parents of the respondent and
eventually she was rescued from the clutches of the petitioner-appellant and
her in-laws. She claims that her behaviour and conduct was not the root
cause but it is the petitioner-appellant‟s own conduct which compelled the
respondent to live separately. She, in her written statement, has shown
willingness to reside and live with her husband. However, she agrees that
with the passage of time some ego problem had cropped up between them.
On the pleadings of parties the trial court framed the following
issues :
(1) Whether the case as framed maintainable?
(2) Whether the petitioner has valid cause of action for the case?
(3) Whether the respondent treated the petitioner with cruelty?
(4) Whether the respondent deserted the petitioner for a
-5-continuous period of not less than two years immediately
preceding the presentation of the petition?
(5) Whether the petitioner is entitled to get a decree of divorce,
as prayed for?
(6) To what other relief or reliefs the petitioner is entitled?
The petitioner-appellant has examined altogether three
witnesses. P.W.1 is the petitioner-appellant himself, P.W.2 Prem Kumari
and P.W.3 Bechan Lal Agrawal are his mother and father respectively.
Opposite Party-respondent has examined altogether four
witnesses among whom O.P.W. 4 is respondent herself, O.P.W.1 Pramod
Kumar Agrawal and O.P.W.2 Prasun Ranjan are her brother and brother-in-
law respectively whereas O.P.W.3 Sriniwas Jain is also one of her relatives.
The petitioner-appellant, as apparent from his pleading and
evidence, has mainly centered his allegation towards the cruel treatment by
his wife right after solemnization of marriage although he has also taken
ground of desertion by the wife. The trial court, after analysing the
pleadings and evidence led on behalf of parties, has come to the conclusion
that the evidence adduced by the respondent is definitely superior in nature,
believable and supported with circumstances whereas petitioner-appellant
has not been able to prove that respondent treated him with cruelty. It has
also been found that since the respondent was recovered with the help of
police on 29.12.1993 and this case has been filed on 8.9.1994, therefore,
there is no question of desertion by wife for continuous period of two years
or more immediately preceding the presentation of the petition as per the
requirement under section 13 (1) (i-b) of the Hindu Marriage Act 1955
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(hereinafter referred to as the Act). In view of the aforesaid finding the trial
court dismissed the case of the petitioner-appellant on contest with costs.
Heard Mr. Sandeep Kumar for the petitioner-appellant
whereas nobody has appeared on behalf of the respondent. In fact this court
by order dated 7.7.1999 directed the appellant to take steps for publication of
notice in daily Hindi News Paper under the provision of Order V Rule 20
of the Civil Procedure Code in the limitation matter and subsequently by
order dated 27.9.2002 on admission of the appeal for its final hearing.
Despite valid service in the aforesaid manner the respondent is not
represented at the time of hearing of this appeal and as such the same had to
be heard and disposed of in her absence.
Learned counsel for the appellant submits that the finding of
the trial court on cruelty is erroneous as it has not appreciated the evidence
led by the petitioner-appellant in the right perspective. By way of alternative
submission it has been submitted by him that after the wife left her
matrimonial house on 29.12.1993 with the help of police she never came
back to the house and all efforts for reconciliation between the parties have
failed. Even after dismissal of the suit in 1998, though nearly ten years have
passed, there has been no contact between the husband and wife at all. The
wife has chose not even to appear in this appeal also. In the aforesaid facts
and circumstances it is submitted on behalf of the appellant that the marriage
has irretrievably broken down and non grant of divorce will be meaningless
and in fact will ruin future aspect of both the parties.
Firstly, it would be appropriate to examine the case for
dissolution of marriage on the ground of cruelty by the husband. Although
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cruelty has not been defined in the Act and there cannot be any straight
jacket formulae for defining it, it can safely be inferred that cruelty includes
both the cases of physical as also the mental cruelty. The Apex Court in
Praveen Mehta Vs. Inderjit Mehta reported in 2003 (1) B.L.J.633 has
analysed the spectrum and amplitude of cruelty in depth. It would
appropriate to quote the relevant passage of the aforesaid decision of the
Supreme Court which is as under;
” 14. As noted earlier, the learned
Single Judge granted the respondent‟s prayer for
dissolution of the marriage on the ground of „cruelty‟.
Therefore, the question arises whether in the facts and
circumstances of the case, a case for divorce under
Section 13(1)(ia) of the Hindu Marriage Act 1955 (for
short‟ the Act‟) has been made out . The answer to this
question depends on determination of „ the question
formulated earlier. In Section 13(1) it is laid down
that:
“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-
xxx xxx xxx
(ia) has after the solemnization of the
marriage, treated the petitioners with cruelty.”
Under the Statutory provision cruelty
includes both physical and mental cruelty. The legal
conception of 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, realizing 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 Russel V Russel, (1897) AC 395, and
Mulla Hindu Law, 17th Edition, Volume II page 87.
The provision in clause (ia) of Section 13 (1), which
was introduced by the marriage Laws (Amendment)
Act 68 of 1976 simply states that „treated the petitioner
with cruelty‟. The object it would seem was to give a
-8-definition exclusive or inclusive which will amply meet
every particular act or conduct and not fail in some
circumstances. By the amendment the legislature must,
therefore, be understood to have left to the Courts to
determine on the facts and circumstances of each case
whether the conduct amounts to cruelty. This is just as
well since actions of men are so diverse and infinite that
it is almost impossible to expect a general definition
which could be exhaustive and not fail in some cases.
It seems permissible, therefore, to enter a caveat against
any judicial attempt in that direction (Mulla Hiidu Law,
17th Edition, Volume II, page 87).”
On further analysis of the various decisions the Supreme
Court in its aforesaid decision has observed that it was formerly thought that
actual physical harm or reasonable apprehension of it was the prime
ingredient of this matrimonial offence. However, that doctrine now stands
repudiated and the recent and modern view is that mental cruelty can cause
even more grievous injury and create in the mind of the injured spouse
reasonable apprehension that it will be harmful or unsafe to live with the
other party. In fact the principle that cruelty may be inferred from the whole
facts and matrimonial relations of the parties including interaction in their
daily life as disclosed by evidence is of greather significance in the case of
mental cruelty.
Further, while dealing with the requirement of the evidence
for proving mental cruelty the Apex Court, in the aforesaid decision, has
come to the conclusion that the approach should be to take a 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 the conduct of the other. The
relevant passage to that effect is as under;
” 21. Cruelty for the purpose of Section 13 (1) (ia) is to
be taken as a behaviour by one spouse towards the other
-9-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 behavioral pattern by the other. Unlike
the case of physical cruelty, the metal 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
other can only be appreciated on assessing the attending
facts and circumstances in which the two partners of
matrimonial life hav 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 petitioner has been subjected to
mental cruelty due to the conduct of the other. “
The Supreme Court in Samar Ghosh Vrs. Jaya Ghosh
reported in (2007) 4 SCC 511 has examined mental cruelty in depth as a
ground of divorce. It has considered the definitions of cruelty, examined
earlier decisions of the Apex Court as well as English cases, American cases,
Canadian cases, Australian cases and also the 71 st report of Law
Commission of India in the aforesaid context. While dealing with the matter,
it had examined the various definitions and concept of cruelty. It will be apt
to refer few passages of the aforesaid decision in this regard which are as
under:-
” 39. Shorter Oxford Dictionary defines “cruelty” as
“the quality of being cruel; disposition of inflicting
suffering; delight in or indifference to another‟s pain;
mercilessness; hard-heartedness”.
40. The term “mental cruelty” has been defined in
Black‟s Law Dictionary (8th Edn., 2004) as under:
“Mental cruelty. _ As a ground for divorce, one
spouse‟s course of conduct (not involving actual
violence) that creates such anguish that it in dangers the
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life, physical health, or mental health of the other
spouse”.
41. The concept of cruelty has been summarized in
Halsbury‟s Laws of England (Vol. 13, 4th Edn., para
1269) as under:
” The general rule in all cases of cruelty is that the
entire matrimonial relationship must be considered, and
that rule is of special value when the cruelty consists
not of violent acts but of injurious reproaches,
complaints, accusations or taunts. In cases where no
violence is averred, it is undesirable to consider judicial
pronouncements with a view to creating certain
categories of acts or conduct as having or lacking the
nature or quality which renders them capable or
incapable in all circumstances of amounting to cruelty;
for it is the effect of the conduct rather than its nature
which is of paramount importance in assessing a
complaint of cruelty. Whether one spouse has been
guilty of cruelty to the other is essentially a question of
fact and previously decided cases have little, if any,
value. The court should bear in mind the physical and
mental condition of the parties as well as their social
status, and should consider the impact of the personality
and conduct of one spouse on the mind of the other,
weighing all incidents and quarrels between the spouses
from that point of view; further, the conduct alleged
must be examined in the light of the complainant‟s
capacity for endurance and the extent to which that
capacity is known to the other spouse. Malevolent
intention is not essential to cruelty but it is an important
element where it exists.”
42. In 24 American Jurisprudence 2d, the term
“mental cruelty” has been defined as under:
“Mental cruelty as a course of unprovoked conduct
toward one‟s spouse which causes embarrassment,
humiliation, and anguish so as to render the spouse‟s
life miserable and unendurable. The plaintiff must show
a course of conduct on the part of the defendant which
so endangers the physical or mental health of the
plaintiff as to render continued cohabitation unsafe or
improper, although the plaintiff need not establish
actual instances of physical abuse”.
That apart cruelty has also been defined in Merriame-
Webster‟s Collegiate dictionary included in Encyclopaedia of Britannica,
Delux Edition 2004 on CD-ROM as follows:-
"1. xx xx xx xx
2. xx xx xx xx
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3: marital conduct held (as in a divorce action) to endanger
life or health or to cause mental suffering or fear”.
Word “cruelty” (matrimonial cruelty) has been dealt with in
Stroud‟s Judicial Dictionary of Words and Phrases, Fourth Edition. It would
be apt to quote relevant passage therefrom:
“1. CRUELTY. xx xx xx xx
2. Referring firstly and chiefly to Evans v. Evans (supra) but
also on a full review of the subsequent cases, Lopes and
Lindley L.JJ. in Russell v. Russell [1895] P. 315 (affirmed
in H.L. [1897] A.C. 395), defined matrimonial cruelty
thus: “There must be danger to life, limb, or health,
bodily or mental, or a reasonable apprehension of it, to
constitute legal cruelty”: see thereon IMPOSSIBLE.
There must be misconduct of a grave and weighty nature
and it must be proved that there is a real injury to health
or a reasonable apprehension of such injury (Le Brocq v.
Le Brocq [1964] 1 W.L.R. 1085; Noble v. Noble and
Ellis [1964]P. 250; Mulhouse v. Mulhouse [1966] P. 39),
and the conduct must be capable of bearing the
description of cruelty in the generally accepted use of that
word (Ainsworth v. Ainsworth, 10 F.L.R.).
3. xx xx xx xx
4. The following are acts of matrimonial cruelty: Duress, or
threats, or habitual insult and studied unkindness, tending
to injury to health (Kelly, v. Kelly, L.R. 2 P. & D. 59;
Bethune v. Bethune [1891] P. 205; see also Beauclerk v.
Beauclerk [1891]P. 189); or terrifying a wife into
immorality (Coleman v. Coleman, 35 L.J.P. & M. 37);
publicly outraging a wife‟s feelings by insulting
language and assaulting her, even though no personal
injury be inflicted (Milner v. Milner, 31 L.J.P. & M.
159); a violently intended, but futile, assault, or spitting
on a wife (D‟Aguilar v. D‟Aguliar, I Hagg. Ecc. Supp.
776): habitual insult and violence of temper, inducing
quarrels and producing physical suffering (Knight v.
Knight, 34 L.J.P. & M. 112); xx xx xx”
On analysis of the various cases and definitions, the
Supreme Court in the case of Samar Ghosh Vs Jaya Ghosh (Supra) came
to the conclusion that there can not be any comprehensive definition of the
concept of “mental cruelty” within which all kinds of cases of metal cruelty
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could be covered. No court, in fact should even attempt to give a
comprehensive definition of mental cruelty for the reason that the human
mind is extremely complex and human behaviour is equally complicated.
Since human ingenuity has no bounds, therefore, to assimilate the entire
human behaviour in one definition is almost impossible. The concept of
cruelty differs from person to person and case to case depending upon
certain factors including the way of their upbringing, level of sensitivity,
and the educational and cultural background of the family and also its
financial position, social status, customs, traditions, religious beliefs,
human values and other aspects. Thus, coming to the conclusion that
although no uniform standard could be laid down for guidance, the Apex
Court in its aforesaid decision has enumerated some instances of human
behaviour which may be relevant in dealing with the cases of mental cruelty
as under:
“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 it possible for the
parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On a comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantely 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, but frequent rudeness of
language, petulance of manner, in difference
and neglect may reach such a degree that it
makes the married life for the other spouse
absolutely intolerable
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(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 the 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
cause unhappiness and dissatisfaction and
emotional upset but 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 notbe adequate for grant
of divorce on the ground of mental cruelty.
(x) The married life should be reviewed asa 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
intercourse for considerable period without
there being any physical incapacity or valid
reason may amount to mental cruelty.
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(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.
In the case in hand, the foundation of “cruelty” as a
matrimonial offence is based upon the allegations made by the husband that
right from the date of marriage the wife‟s behaviour was not up to mark. The
wife did not use to live continuously with the husband or in her matrimonial
house rather she came there occasionally. The appellant-husband was
employed in Oriental Bank of Commerce as Engineer. He later took up his
studies for degree of M.Tech in I.I.T., Delhi. However, as per the allegation
the behaviour of wife was so crude, unpleasant and indecent that it made the
life of the petitioner-appellant hell and ultimately, the petitioner-appellant
failed to clear his examination for obtaining M-Tech degree and also had to
leave his job because he became mentally perturbed. The petitioner-
appellant who had been examined as P .W-1 has stated that the wife used to
call his mother as “Budhia” and never paid regard to his parents. She used to
consider herself to be a very beautiful and meritorious whereas she used to
condemn the husband by calling him “monkey”. In his further examination
the husband has stated that at one point of time when he went to Ara (sasural
of the husband) she gave him a letter addressed to the Chief Justice, Patna
High Court and wherein she has stated that she does not want to live with
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her husband and refused to come with him. Thereafter, when everything
went wrong then a petition for divorce by mutual consent was drafted and
signed by both parties. However, on assurance by the mother-in-law that she
will try to make her daughter understand, the aforesaid petition was not filed.
The wife in her evidence has not denied having written the aforesaid letter to
the Chief Justice and also having signed the aforesaid petition for divorce
which are exhibit 1/A and exhibit 2 respectively. However, she has stated
that she was forced to write all those things and she signed the paper under
force and coercion though in fact she did not had any intention to either to
send the letter to the Chief Justice or to file a petition for dissolution of
marriage with mutual consent. It has been further disclosed by the petitioner
appellant in his examination as PW-1 that in place of trying to improve the
situation, the family members of the respondent gave wrong information to
the police only to embarrass the appellant and his family as she left her
matrimonial house with the help of police. In his cross-examination he
disclosed that he was always being compared with the husband of his sister-
in-law and sarcastic remarks were being made with regard to his looks as
well as income etc. by the wife. Other witnesses on behalf of the petitioner
have also supported his case and they have stated that the wife used to call
the husband as “Kalu” and “monkey”. Further that she never used to help in
domestic work.
The wife in her examination as O. P.W.4 has refuted the
charges made by the husband and has stated that she was being tortured
there. She has stated that she was forced to write the letter addressed to the
Chief Justice and she was forced to put her signature on many other papers.
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She has stated that with the help of police she went back to her „naihar‟.
However, from the averments made by her in her cross-examination it is
apparant that she only occasionally lived in the matrimonial house between
1991 to 1994. It has further been stated that she came in the month of
October, 1993 at her matrimonial house at Patna and went back to her
father‟s house on 29.12.1993 with the help of the police. It has also been
accepted by her that her husband used to give her Rs. 3500/- for meeting her
personnel expenses. She has also stated that she has signed on the papers for
dissolution of marriage by mutual consent only on being pressurised by her
husband. Though ,there has also been allegation of demand of Rs. 200000/-
by the husband, it has also admitted by her that she was allowed to continue
with her studies and has filled up U.G.C. form. She has also stated that she
passed M.A. examination in 1993 and in 1997 she has been registered by the
Magadh University for doing research work for award of Ph.D. degree.
Learned trial court while analysing the evidence led on
behalf of the parties has disbelieved the petitioner-appellant‟s version. In my
opinion the reasons recorded in the impugned judgement for disbelieving the
same are not correct. The trial court has disbelieved the case of appellant of
loosing the job on account of cruel behaviour of wife on the ground that the
petitioner remained for one year more even after the wife‟s return from
Delhi in December 1991 and also that since the wife did not live with the
husband even for whole one year then the question of her misbehviour with
the appellant at Delhi causing mental agony and forcing him to leave the
job does not arise .Thus, for that reason the entire evidence of the husband
has been disbelieved. Further, after discarding the evidence of the appellant
– 17 –
on the aforesaid ground the learned trial court has found that only evidence
which remains on record is that wife used to call the husband as “kalu” and
“Monkey” and at her mother-in-law as “Budhiya”. Evidence of petitioner-
appellant has been discarded by the court below on the ground that there is
no witness (except the husband and his parents) on the point that she always
passed comment regarding his service etc. and calling him inferior to her
brother-in-law and also that the petitioner-appellant failed to specify the
dates on which the wife called her mother-in-law as „Budhiya‟ or the
husband as „Kalu‟ and „monkey‟. The trial court has observed that there is
nothing on record to show why the wife will act in such a cruel manner. The
trial court has further observed that both the husband and wife appeared
during the course of reconciliation attempt and neither the husband looks
ugly nor the wife was very beautiful, therefore, on aforesaid reason the
allegation of cruelty has been disbelieved.
In my considered opinion the trial court has landed itself to
wrong conclusion as in matrimonial cases wherein relationship between the
two persons is under scrutiny, it is very difficult to find the witnesses other
than family members. As has been held in Parveen Mehta Vs. Inderjit
Mehta (Supra) by the Apex Court, unlike the physical cruelty the mental
cruelty is difficult to be established by direct evidence. Cruelty is to be taken
as the behaviour of one spouse towards the other which causes reasonable
apprehension in mind of the latter that it is not safe for him or her to
continue the matrimonial relationship with the other. A feeling of anguish,
disappointment and frustration in one spouses caused by the conduct by the
other can only be appreciated on assessing the attending facts and
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circumstances in which the two partners of matrimonial lives. In case of
mental cruelty it will not be correct approach to make an instance of
misbehavour in isolation and answer the question as to whether such
behaviour is sufficient to cause mental cruelty. The right approach would be
to take cumulative effect of the facts and circumstances emerging from the
evidence on record and then draw a fair inference whether the petitioner has
been subjected to mental cruelty due to the conduct of the other. In the
present case the husband has said that the wife had lived with him only
occasionally and the same has been admitted by the wife also in her
examination. In the written statement the wife accepts that there was some
ego problem. Even if wife came back from Delhi one year earlier than the
husband, it may not be sufficient ground for discarding the case of the
petitioner-appellant that due to her behaviour and cruelty his career was
ruined. Husband has stated that a petition was drafted for dissolution of
marriage with mutual consent and it was signed by the parties but was not
filed on assurance of the mother-in-law that she will make her daughter
understand and to change her behaviour. Thereafter, the wife came to the
matrimonial house and then within three months she was rescued by the
police and sent back to her father‟s place. In the evidence wife has talked
about the cruelty and demand of Rs. 2, 00000/ but at the same time she has
admitted that no complaint was made earlier than 29.12.1993 in this regard
either by her or her family members. . Further admission is that the husband
used to give her Rs. 3500/- monthly for meeting her expenses. She has
stated that the petition for divorce by mutual consent was signed by her at
the pursuation by her husband. But the question is when the husband had
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been able to take her signature on the petition for dissolution of marriage by
mutual consent then why he did not filed it. Even if assuming that he had
forced his wife to sign the paper in that case also the normal action would
have been that he could have filed the petition before the competent court
but the same was not filed by him. Thus the version of the petitioner
appellant that due to the assurance of mother-in-law he did not file the
aforesaid petition seems to be logical. Assurance was for better behaviour in
future. This was followed by the 29.12.1993 incidence when police
recovered the girl and sent her to her father‟s place. The version of the
petitioner-appellant seems reasonable that the entire substratum of marriage
vanishes when the wife thinks about herself very high as educated ,
meritorious and beautiful and in comparison does not find her husband as
handsome more so when she herself has admitted in her written statement
that there was ego problem between them. Therefore, the finding of the trial
court that there is no reason on record why the wife will behave in such a
cruel manner does not seem to be correct. Further regarding the sarcastic
remarks and addressing the husband as “Kalu” and “Monkey” and the
mother-in-law as “Budhiya”, the trial court has discarded the allegation on
the ground that during the process of reconciliation the trial court has found
that neither the wife is very beautiful nor the husband was very ugly. In my
opinion, the court was wrong in applying its own personal view regarding
the looks of the parties and thus discarding the allegation of passing sarcastic
remarks by the wife on the husband. It is very difficult to analyse human
mind and behaviour. The appreciation of beauty differs from person to
person. At times even ordinary looking person may form high opinion
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regarding himself. Therefore, applying personal view in this matter was not
proper. The allegation made by the husband is that right from the day of
marriage the wife was not prepared to cooperate and her behaviour was
indecent. Therefore, in my opinion, the trial court has seriously erred in not
appreciating the evidence on record in a proper perspective. In the light of
the principle discussed above and after appreciation of evidence I find that
right from the beginning matrimonial relationship between the parties was
not normal as the wife has accepted in her written statement that there was
ego problem. The husband who was a good student suddenly fails in his
studies and leaves his job in frustration. Thereafter, a petition for dissolution
of marriage with mutual consent is prepared and signed by the parties but
not filed. The wife drafted a letter to the Chief Justice that she does not want
to live with her husband. She admits living in her matrimonial house only
occasionally and then was allegedly rescued by the police and sent back to
her father‟s place. Further the wife in her cross-examination has admitted
that there was no complain made anywhere regarding misbahaviour or
demand of Rs. 2,00000/-.on any occasion earlier than 29.12.1993 incidence.
If all the aforesaid facts are considered in the context of the principle laid
down by the Apex Court in Praveen Mehta Vs. Inderjit Mehta (Supra)
and Samar Ghosh V Jaya Ghosh (Supra), one has to come to the
conclusion that there was element of mental cruelty in wife‟s behaviour
towards husband and the finding of the trial court in this regard requires to
be reversed. In my considered opinion the husband was subjected to mental
cruelty by the wife.
So far the ground of desertion is concerned, I am in
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agreement with the trial court that the basic requirement of provisions as laid
down under section 13(i-b) of the Act are not proved as the appellant has
failed to prove that the wife has deserted the petitioner for a continuous
period of two years immediately preceding the presentation of the petitions
as the case has been filed on 8.9.1994 and the wife was admittedly recovered
with the help of the police on 29.12.1993 which was the last day when they
lived together.
No issue with regard to allegation of adultery has been
framed by the trial court and there is no positive evidence led by the
petitioner-appellant in this regard. Thus, the submission of the learned
counsel for the appellant that the wife was living adulterous life has no
substratum.
Learned counsel further submits that the marriage has
irretrievably broken down after alleged rescue of wife with the help of police
by the family members of the wife on 29.12.1993. It is contended that even
after the dismissal of suit on 27.6.1998, there is no contact between the
parties. The respondent, despite valid service by way of publication in
news papers on two occasions, has chosen not to appear in this appeal. Thus,
the submission is that since the spouse has parted with the company, in these
circumstances it can be reasonably inferred that the marriage between the
parties has broken down irretrievably. The provisions under the Hindu
Marriage Act 1955, as it stands today, does not include irretrievable break
down of marriage as the ground to sever the matrimonial tie. However in
recent decisions the Supreme Court has shown a shift from the
conservative interpretation of the relevant provisions to a more liberal
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approach in granting a divorce on the finding of irretrievable break down of
marriage. The Apex Court while dealing with this issue in Samar Ghosh V
Jaya Ghosh (Supra) has referred the 71st report of Law Commission of
India which has dealt with the concept of irretrievable break down of
marriage. According to the Law Commission report an important question
has cropped up and engaged the attention of the society, as to whether the
grant of divorce be based only on fault of the party, known as matrimonial
offence theory or fault or it should even be on break down on marriage
which is known as break down theory. The Supreme Court in the relevant
paragraph while referring the law commission report has observed as under;
“94.It is also mentioned in the Report that in case
the marriage has ceased to exist in substance and in
reality, there is no reason for denying divorce, and then
the parties alone can decide whether their mutual
relationship provides the fulfillment which they seek.
Divorce should be seen as a solution and an escape route
out of a difficult situation. Such divorce is unconcerned
with the wrongs of the past, but is concerned with
bringing the parties and the children to terms with the new
situation and developments by working out the most
satisfactory basis upon which they may regulate their
relationship in the changed circumstances.”
In the aforesaid decision it has further been held that law of
divorce based mainly on fault is inadequate to deal with a broken marriage.
Under the fault theory guilt has to be proved; divorce courts are presented
with concrete instances of human behaviour as bring the institution of
marriage into disrepute.
In yet another decision in the case of Rishikesh Sharma V
Suraj Sharma reported in 2007 (2) SCC 263 the Apex Court has observed
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and held as hereunder:
“4. We heard Mr. A.K. Chitale, learned
Senior Counsel and Mr S.S. Dahiya, learned counsel for
the respondent and perused the judgement passed by both
the trial court and also of the High Court. It is not in
dispute that the respondent is living separately from the
year 1981. Though the finding has been rendered by the
High Court that the wife last resided with her husband up
to 25-3-1989, the said finding according to the learned
counsel for the appellant is not correct. In view of the
several litigations between the parties it is not possible for
her to prosecute criminal case against the husband and at
the same time continue to reside with her husband. In the
instant case the marriage is irretrievably broken down
with no possibility of the parties living together again.
Both the parties have crossed 49 years and living
separately and working independently since 1981. There
being a history of litigation with the respondent wife
repeatedly filing criminal cases against the appellant
which could not be substantiated as found by the courts.
This apart, only child born in the wedlock in 1975 has
already been given in marriage. Under such
circumstances the High Court was not justified in
refusing to exercise its jurisdiction in favour of the
appellant. This apart, the wife also has made certain
allegations against her husband, that the husband has
already remarried and is living with another lady as stated
by her in the written statement. The High Court also has
not considered the allegations made by the respondent
which have been repeatedly made and repeatedly found
baseless by the courts.
5.In our opinion it will not be possible for
the parties to live together and therefore there is no
purpose in compelling both the parties to live together.
Therefore, the best course in our opinion is to dissolve the
marriage by passing a decree of divorce so that the parties
who are litigating since 1981 had have lost valuable part
of life can live peacefully for remaining part of their life.”
The Supreme Court in Praveen Mehta V
Inderjit Mehta (Supra) has held as under :
“As noted earlier the parties were married
on 6th December, 1985. They stayed together for a short
period till 28th April, 1986 when they parted company.
Despite several attempts by relatives and well-wishers no
conciliation between them was possible. The petition for
the dissolution of the marriage was filed in the year 1996.
In the meantime so many years have elapsed since the
spouses parted company. In these circumstances it can be
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reasonably inferred that the marriage between the parties
has broken down irretrievably without any fault on the
part of the respondent. Further the respondent has
remarried in the year 2000. On this ground also the
decision of the High Court in favour of the respondent‟s
prayer for dissolution of the marriage should not be
disturbed. Accordingly, this appeal fails and is
dismissed. There will, however, be no order for costs. “
Learned counsel for the appellant has also placed reliance
upon a decision of Apex Court in Satish Sitole vs Smt. Ganga reported
in 2008 (5) Supreme 198 , as in the aforesaid case also, the Supreme
Court on consideration of fact found that for past long 14 years husband
and wife have been living separately. It has held that it would be in the
interest of both parties to sever the matrimonial ties since the marriage
has broken down irretrievably .
In the present case wife had admittedly left the matrimonial
house on 29.12.1993. A case for dissolution for marriage was filed on
8.4.1994 and the same was dismissed on 27th June 1998. Learned counsel
for the appellant submits that since 29.12.1993 they are living separately and
since 8.4.1994 there is no contact between the parties. Even prior to
29.12.1993, as admitted by wife, she was living only occasionally either in
her matrimonial house or with her husband at Delhi. The attempt for
reconciliation before the trial court has also failed. Even after dismissal of
the matrimonial case there is no contact between the parties. Despite valid
service of notice twice by way of publication in newspaper, the respondent
has not appeared to contest this appeal. This appeal has been filed in 1998
and now it is 2008. Ordinarily the time period lost due to the systemic delay
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in disposal of the cases are not taken into account for counting the period of
separation and for deciding the case on break down theory. But in the
present case I find force in the argument of the learned counsel for the
appellant as it appears that the wife has lost interest not only in the case but
also in her matrimonial ties. She has not appeared to contest the appeal and
also is not in contact with the appellant for the last more than about 14 years.
As has been admitted by her while being examined as witness that she lastly
visited the house of the petitioner-appellant in the month of March 1994.
The Supreme Court in Samar Ghosh Vrs. Jaya Ghosh (Supra) while
illustrating the instances of “mental cruelty” has stated that where there has
been a long period of continuous separation, it may fairly be concluded that
the matrimonial bound is beyond repair. The marriage in that case becomes a
fiction though, supported by a legal tie. Therefore, refusal to sever that tie
may not serve the sanctity of marriage. If the person shows scant regard for
feelings and emotions of the spouse, the long period of such continuous
separation may lead to “mental cruelty”. In the present case, the husband and
wife are not in contact since about last 14 years. Thus, it appears that
feelings and emotions for each other have already vanished. The respondent
even did not appear to oppose the appellant in this appeal. Thus, in my
considered view, to refuse divorce to the appellant and to compel the
parties to resume under matrimonial tie even if they are living separately for
about 14 years, will not serve any purpose and will not be of any benefit to
either of the parties.
In the result the appeal filed by the husband stands allowed
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and the judgment and decree passed by the trial court is set aside. There will
be a decree of dissolution of marriage in favour of the appellant-husband. It
is further held that in the absence of respondent it will be very difficult to
pass any order with regard to permanent alimony/maintenance. However, I
grant liberty to the respondent wife to take steps for permanent
alimony/maintenance before the court of competent jurisdiction if she so
desires. In case such an application is filed by the wife before the court of
competent jurisdiction, then such court will decide the matter in accordance
with law.
(Dr. Ravi Ranjan, J)
C.K.Prasad, ACJ.
(Chandramauli Kr. Prasad, ACJ)
Patna High Court
The Dec. 2008
Rahman/ NAFR.
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