JUDGMENT
N.K. Mody, J.
1. Being aggrieved by the judgment and decree dated 22-7-2004 passed by First Additional District Judge, Dhar in case No. 36-A/03, whereby decree of divorce has been passed in favour of the respondent, the present appeal has been filed.
2. Short facts of the case are that the marriage between the appellant and the respondent took place on 9-5-2002 at Dhar. The suit of divorce was filed by the respondent on 28-8-2003. wherein it was alleged that after the solemnization of marriage, appellant went back to her parental house on 18-8-2002. thereafter inspite of calling the appellant did not turn up. It was alleged that respondent went to call the appellant on 23-8-2002. where he was misbehaved, thereafter, on 25-8-2002 along with number of persons, father of the respondent K.C. Chauhan went to the village of the appellant, where he was beaten. “It was further alleged that on 28-3-2002 a notice was sent by registered post, whereby appellant was called upon but of no effect. Hence, it was alleged that respondent is entitled for a decree of divorce on the ground of cruelty and desertion.
3. Prayer was opposed by the appellant alleging that the appellant is living with her parents under compulsion. It was alleged that appellant has not been taken to her matrimonial house. It was alleged that, as the sufficient dowry was not given by the parents of the appellant, therefore, appellant was beaten and mentally tortured. In this regard a complaint was also lodged by the appellant it was also alleged that ornaments of the appellant were taken by the respondent. It was prayed that application for divorce be dismissed.
4. Learned Court below on the basis of the pleadings of the parties framed the issues and recorded the evidence. By the impugned judgment learned Court found that behaviour of the appellant was cruel, hence the decree of divorce was passed under Section 13(1)(1-b) of the Hindu Marriage Act.
5. learned Counsel for the appellant submits that the allegation against the appellant is that father of the respondent was beaten when he went to bring back the appellant. Findings in this regard is in Para 18 of the judgment. In Para 20 of the judgment the learned Court below has given the reasons why the respondent filed the suit for divorce which reads as under :-
20. Thus it is clear from the above observations that the non-applicant Seema could not prove that she was subjected to maltreatment and harassment at her matrimonial house, therefore, she doesn’t have any reasonable ground to refuse to live with the applicant Nilesh. On the other hand the evidence led by both the parties definitely proved the following facts :-
A. that the non applicant Seema in spite of the clear instructions from her husband Nilesh, went to his Uncle’s house at village Chhayan, due to which the applicant’s desire to have the, first Rakhi celebrated with his sisters was foiled.
B. that the non-applicant Seema not only misbehaved with the applicant Nilesh, but her father and brother did beat his father Kailash, so brutally that his hand was fractured.
C. that the non applicant Seema lodged false and vexatious complaints with the Mahila Police Thana, Indore against the applicant Nilesh and all of his family members, alleging false incidents, resulting which all of them had to face inquiry with the Police at Indore.
D. that the non-applicant Seema has left the company of the applicant and is residing separately without any justifiable cause. Thus, depriving him of the matrimonial pleasures, which is naturally causing a mental stress and agony to the applicant.
6. Decree of divorce on the ground of cruelty can be passed under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (which shall be referred herein after as “Act”) which reads as under :-
Section 13 : Divorce- (1) Any marriage solemnized, whether before or after the commencement of this Act may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty.
7. learned Counsel for the appellant submits that while passing the decree against the appellant learned Court below has placed reliance on the following authorities :-
(A) Tapan Kumar v. Biva AIR 1988 Cal 223, wherein it was held that the decree of divorce on the ground of cruelty where job was provided to husband by relations of wife and husband pressurised to live separately from joint family. He was also physically assaulted and transferred from one place to another by relations of wife. He was also forced to tender resignation. In such circumstances the Divisional Bench held that such acts of wife and her relations amounts to cruelty.
(B) Harbhajan Singh v. Amarjeet Kaur , wherein this Court has held that Cruelty- threats of committing suicide by wife, such threats constitute cruelty towards husband.
(C) Rupa (Smt.) v. Vijay Kumar reported in 1998 (1) MPWN 244, wherein, the wife used to quarrel with the husband on petty matters and thereafter lived with her parents and lodged number of reports against the husband on false allegations with the intention to involve him in criminal cases of serious nature. In the circumstances this Court held that the act of the wife amounts to cruelty committed by wife.
(D) Anita (Smt.) v. A.K. Rathore, reported in 2000 (1) JLJ 75 : , wherein, wife administered sleeping pills to her husband as has been admitted by her In some of the letters written by the wife. Husband apprehended danger to his life and suspected, that his wife was slowly poisoning in order to grab the amount of fixed deposits. The illicit relationship carried on by the wife must have naturally caused tension and suffering to the husband, in the circumstances this Court held the act of wife amounts to cruelty.
(E) Arvind Singh v. Smt. Rekha, reported in 2001(II) MPJR SN 16, wherein on account of quarrel and misbehaviour the husband called Panchayat in which the wife was persuaded to mend her ways and she consented to do so and executed affidavit in that regard, in which she admitted her fault and agreed to behave herself properly and not to go her parents home without intimating her husband. Besides the above evidence, it was found that wife used to quarrel with the husband and would also misbehave and torment their children. She was not cooking food and would not bring up the children properly. So many times it was found that the house of the husband was locked and the children were sitting outside. In the circumstances it was held by this Court that the ground for divorce on account of cruelty is made out.
(F) Dr. N.G. Dastane v. Mrs. S. Dastane, , wherein Hon’ble Supreme Court has held tha.t “Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. The principle accords with commonsence as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of the Act.
(G) Shobha Rani v. Madhukar Reddi in . wherein the Hon’ble Supreme Court has held that “Husband and wife are the partners in life. They must equally share equaly happiness and sorrow. They must help each other. One cannot take pleasure at the cost of the other. It was further observed that it is also not proper to discredit the wife as hypersensitive or prone to exaggeration. In the instant case, the cumulative effect of all the circumstances and the evidence of the parties led to the conclusion that the demand of dowry went on with the support of the husband and the proof of element of harassment was not necessary.
(H) V. Bhagat v. D. Bhagat reported in AIR 1994 SC 710, wherein the Hon’ble Supreme Court has held that allegations by wife in her written statement and question put by her counsel to husband that husband and all members of his family are lunatics and streak of insanity run through his entire family, constitutes mental cruelty and it was held that husband in the circumstances cannot be asked to live with wife. In this case it was also observed that while arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances to the case. If it is a case of accusations and allegations, regard must also be had to the contest in which they were made.
8. learned Counsel for the appellant submits that none of the case is applicable in the present case. It is submitted that the appellant was married with the respondent on 9-5-2002 and they lived together till 18-8-2002 i.e. approximately three months only. It is submitted that no incidence of cruelty has been alleged against the appellant when the appellant lived with the respondent. It is submitted that the learned Court below has passed the decree on the ground of cruelty holding that on account of clear instruction from her husband, appellant visited uncle’s house at village Chhayan due to which the desire to have the first Rakshabandhan celebrated with the sisters was foiled. It is submitted that appellant went to village Chhayan with her mother. In the pleadings it is not the case of respondent that on account of her visit, Rakshabandhan could not be celebrated by the respondent with his sisters along with appellant.
9. Shri A.S. Kutumbale, learned senior advocate for the respondent submits that the marriage took place in the year 2002 and from August, 2002 both of them are living separately. It is submitted that sufficient ground to grant the decree on the ground of cruelty has been made out and the learned Court below has rightly passed the decree in favour of the respondent.
10. Hon’ble Supreme Court in the matter of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate , wherein Hon’ble Apex Court has held that “cruelty does not depend upon any particular period or number of incidents of cruel treatment or continuous course of conduct but depends upon intensity, gravity and stigmatic Impact of it when meted out even once. Allegations, aspersions and reproaches which are per se cruel in nature, deliberately made against wife and placed on record through written statement filed in Court by husband, have deleterious effect on mental attitude of the wife which cannot be wiped out by amendment of the written statement unilaterally withdrawing those allegations.
11. In the matter of A. Jayachandra v. Aneel Kaur , wherein Hon’ble Supreme Court has held as under :-
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 wilful 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 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 the 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 a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. 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.
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 apprehensions 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.
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 an extent due to the conduct of the other spouse that it would be impossible for them 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.
12. From perusal of the record, it is evident that the respondent/husband is having the qualification of Secondary education while the appellant/wife is graduate. It is also evident that appellant is belonging to a family of a lower income group. Father of the appellant is the bread winner who is working as Electrician. So far as respondent is concerned, father of the respondent was Patwari and is colonizer and President of Kailash Nagar Housing Society which is in on his own name as his name is Kailashchand. This fact has been admitted by PW-1 Kedar Prasad Choudhary. Thus, the financial status of the respondent is higher than the family of appellant. Respondent has examined Kedar Prasad Choudhary (PW-1) to whom a plot, was given by the father of respondent in the same colony of which the father of respondent was President. Tekchand Pal (PW-4) is also resident of the same colony. From perusal of the statement of Omprakash Joshi (PW-4), it is evident that in Para 3 of his cross examination he has stated that upon reaching to the house of appellant the mother of appellant said that Sema will be sent to the house of the respondent after 2-3 days.
13. The marriage was soleminzed on 9-5-2002 and both the parties remained together up to 18-8-2002 happily. Appellant left the house with the permission of respondent when the mother of the appellant came to take her for Rakshabandan. The allegation in the petition filed by the respondent is that in spite of specific instructions appellant went to village Chhayan, District Ujjain to celebrate the festival of Rakshabandan, while she was instructed to celebrate the festival at village Palda. From the pleadings it is also evident that when this instructions were given by the respondent at that very time the mother of the appellant was annoyed. Since the appellant was with the mother and if the mother has taken the appellant to village Chayyan, then it cannot be said that appellant has treated the respondent with cruelty.
14. If the application; filed by the respondent for divorce is minutely examined then it is clear that after 18-8-2002, when appellant came back to her parental house with her mother, two incidents took place; first incident took place on 23-8-2002, when the respondent went to the
house of the appellant to take her back, at that time as per the allegations made in the application appellant was not sent back and the respondent Was misbehaved by the parents of the appellant. Second incident took place on 25-8-2002, when the father of the respondent went to take the appellant, at that time the parents of the appellant not only did not send back the appellant, but also beaten the father of the respondent in regard of which the FIR was lodged. In the notice Exhibit P-1 this allegation was made, which was duly replied vide Exhibit P-6, in which the facts were denied and it was alleged that the father of the respondent fell down as he was in intoxication. The FIR has not been filed to prove the fact that in what circumstances father of the respondent sustained injuries. Respondent has examined number of witnesses but the father of the respondent was not examined for the best reasons known to the respondent. Thus the best evidence of the incident, which took place on 25-8-2002 was the FIR and Kailash Chandra Chouhan, father of the respondent but documentary as well as oral evidence, which could have thrown light or the issue has not been produced by the respondent. Apart from this for a decree of divorce on the ground of cruelty other party is required to treat the petitioner with cruelty. Here in both the incidents even if for the sake of arguments it is accepted that the allegations made by the respondent are true, then too it can safely be said that at both the occasion the appellant was having no role to play. It cannot be said that appellant has treated the respondent with cruelty.
15. As discussed above the case law upon which reliance has been placed by the learned Court below for granting the decree was not applicable in the present. In the light of the law laid down by the apex Court in the matter of Jayachandra v. Aneel Kaur (supra) “To constitute cruelty, the conduct complained of should be ‘grave and weighty.
16. In view of this the appeal is allowed. The judgment and decree dated 22-7-2004 passed by 1st ADJ, Dhar in Civil Suit No. 36-A/2003, is set aside.
17. A copy of the judgment be sent to Shri Rajiv Bhatjiwale, who has passed the impugned judgment.
No order as to costs.
