Gulab C. Gupta, J.
1. This is defendant’s appeal under Section 28 of Hindu Marriage Act (hereinafter referred to as the Act) against the judgment and decree of divorce passed by Shri Vinod Saxena, District Judge, Satna on 25-7-1991 in Civil Suit No. 36-A/1986 on the ground of cruelty and desertion. The appellant challenges legality of the same and prays for setting aside the decree and dismissal of the suit filed by the respondent.
2. There appears to be no dispute that the parties were married on 29-1-1984 in accordance with Hindu Law and thereafter lived at Raipur and Satna for some time. The respondent/husband in his application before the trial Court submitted that after their marriage on 29-1-1984, the parties lived at Satna for few days. Both of them thereafter went to Raipur together, where the appellant was left alone for some time with the respondent’s parents. The parties again went on holiday to Puri. Thereafter, the appellant went back to her parents’ home at Faizabad and did not return either to Raipur or Satna to live with the respondent. It was also submitted that the respondent’s sister was to
be married on 9-4-1984 and, therefore, he requested the appellant to come to Raipur to join him in the marriage, but she did not do so. It was further alleged that on 19-7-1984, the respondent, in the company of his mother and grandmother, went to the appellant’s house to bring her back to Satna. She accompanied him to Satna, after a great deal of persuation. After staying about 12 days at Satna, she went back to her parents on the pretext that her brother was coming from U.S.A. She had thereafter never returned. The respondent wrote several letters to the appellant wife to persuade her to come back but without any effect. Thereafter, the appellant wrote a letter on 29-10-1984 and accused respondent’s mother and grandmother of hatching a conspiracy to burn her alive. Since the appellant had designated respondent’s mother and grandmother as devil incarnate by making false allegation, she was accused of cruelty. Since she had refused to come back to Satna to live with him, the appellant was also accused of desertion. The appellant, in her written statement, admitted that she was married and lived at Satna and Raipur, but denied that she had done anything, which may amount to cruelty. She, on the contrary, alleged that she had been ill-treated by the mother-in-law and grand-mother-in-law, on her first visit to Raipur, because she had not brought enough dowry. She offered to come back unconditionally and live with the respondent. The learned District Judge, on consideration of evidence adduced by the parties, held that the appellant was guilty of cruelty and also desertion and, therefore, passed the impugned judgment and decree.
3. The submission of the learned counsel for the appellant is that even if everything contained in the plaint is accepted as true, it would not amount to cruelty or desertion, as understood in law. It is futher submitted that the letter (Ex.P/8) is said to be containing allegation amounting to cruelty, but that allegation is neither cruelty nor it shows anything intentionally done by the appellant. The letter, if at all, contains an awful tale of the appellant’s exploitation. As against this, the learned counsel for the respondent submitted that the allegation regarding demand
of Rs. 10,000/- as dowry made by the appellant in her statement, does not find place in the written statement and hence it is apparent that it was a false statement intended to cause strain to the respondent. This also shows that the appellant was used of making false statement. It is, therefore, submitted that the judgment was just and proper and needs no interference, by this Court.
4. From the material on record, it is apparent that the respondent was employed as a Clerk in Allahabad Bank at Satna at the time of his marriage in the year 1984. The appellant is a daughter of a retired Post Master. Respondent Shailendra Kumar as P.W. 5 has deposed that after marriage on 29-1-1984, the appellant stayed with him for 2-3 days at Satna and thereafter both of them went to Raipur and lived together 4-5- days. According to him, at Raipur, the appellant was quiet and not talking to any one. She, however, made no complaint against any one. He came back to Satna for joining his duties and again joined the appellant at Raipur after about 7-8 days. Thereafter, both of them went to Puri on a holiday. At puri, the appellant was asked as to why she was keeping quiet and then she told him that, “APKE GHAR MEN MAHOL BAHUT KHARAB HAI. NA BATHROOM HAI NA LATRIN HAI APKE PARIVAR KE LOG UNCULTURED HAIN. MAI YAHAN AAKAR FANS GAYI BOON.” This statement, according to the respondent, is said to be an example, as an incidence of cruelty. It may, however, be mentioned that there is no such allegation in the plaint, though the visit to Puri is mentioned in Para 7 thereof. Apparently, therefore, this statement is an after thought and hence not much weight can be attached to it. It is also unthinkable that a newly married wife on a honeymoon trip with her husband would make such a statement. The respondent Shailendra Kumar as P.W. 5 has further deposed that on return to Raipur, the appellant’s father came to take her and the appellant had then told her father “APNE MUJHE KAHA FANSA DIYA HAI, MAIN EK MINUTE YAHAN PAR NAHAIN RAHNA CHAHTI.” The respondent further deposed on oath that his mother
told the appellant that her presence would be necessary in the pooja to be performed during Nav-Ratri. The appellant’s father agreed to send her back for that purpose, but later on, he sent a telegram that the respondent should not come to take her, as a result thereof, the appellant did not participate in the Pooja. That the appellant did not participate in the Pooja is admitted. On perusal of Ex.P/1, it appears that the appellant did not appear in the Pooja. Surprisingly, no question was asked to her about her absence from Pooja. The respondent, as P.W. 5 has further stated that the appellant did not come to Raipur to participate in his sister’s marriage. He admitted that since everybody was busy in connection with arrangement of marriage, no one could go to bring her back. He had sent a telegram and yet the appellant did not come back to join him in marriage. The fact that the appellant did not join respondent’s sister’s marriage is also admitted. In her statement (Para-4), she had said that she could not participate in the marriage because no one came to take her to Raipur, in spite of her father’s telegram. Again no question was asked from her during her cross-examination on this aspect of the matter. The respondent has further stated that he again went to Faizabad and with great difficulty brought the appellant back, but this time, she stayed 7-8 days only and was taken by her father. Thereafter, he sent letters, but the appellant did not come. His mother, grandmother and younger brother went to Faizabad to bring her back, but she refused. In para-3 of his statement, he deposed that 2-3 months thereafter he went to Faizabad with a mind to bring the appellant back, but the appellant stated that she was studying and would not go back. It would, therefore, appear from the statement that when the appellant went back on the pretext of meeting her brother, who was coming from U.S.A., the respondent’s mother, grandmother and elder-brother’s wife were sent to bring her back, but they returned humiliated. There is no such statement in the plaint, on the contrary, plaint para-14 only mentions that the respondent sent his brother and grandmother to bring her back to Satna. Since, this is the only
statement of the respondent, it would appear that after the appellant had come to stay with him twice and after having gone, did not come back and instead wrote a letter (Ex.P-8) making false accusation.
5. As regards Ex.P-8, it is admittedly a letter written by the appellant to the respondent on 29-10-1984. The respondent in his statement (para 3) has stated that he thought it proper to ignore this letter and went to Faizabad along with his friends to bring the appellant back and was told that she was studying law and could not, therefore, accompany him. As regards Ex.P-8, the respondent claims to have been told that since she thought that the respondent was going to take some legal action, she has also written a false letter. The letter first pledges her allegiance to the respondent and mentions that in the context in which the parties live, the husband is treated as a God and the wife has no place without the husband. Subsequently, she complains about the misbehaviour of the respondent’s mother and the grand-mother and states that when she had informed the respondent about it, the respondent had expressed his inability to do so. That the appellant had told the respondent about the misbehaviour of the family members is also proved by the respondent’s own statement on oath (para 2), which had been quoted above and from which, it is clear that the appellant had complained of misbehaviour at Puri. It is, therefore, possible to hold that something had happened, which compelled the appellant to adopt the said attitude. Is that cruel? It is well-known that a newly married bride would not like to create a situation where she would not be able to live happily in future and that too, during her honeymoon itself. There is no allegation about the character of the appellant or her previous involvement with any one else. There is also no evidence of incompatibility between the parties and the appellant being the daughter of a retired Post Master could not feel sorry for being married to an employee of a nationalised bank. If her complaint at Puri is considered in that context, it would be difficult to hold the same without any basis. It is also unnatural for a newly married bride to start planning for dissolution
of her marriage without any ostensible reason. Under the circumstances, this Court is inclined to hold that something must have happened so as to make her complain about it to her husband. The respondent’s mother Kamla Bai (P.W. 4) has deposed on’oath that when the appellant came to Raipur, she was quiet and not talking to her or her younger son. According to her, they had treated the appellant nicely, but, she did not touch her feet and kicked the box and said “KAHAN PATAK DIYA”. This again is unnatural and does not deserve to be believed, particularly when there is no such allegation in the plaint. If the evidence of Kamla Bai is to be read in between the lines, it would appear that something had happened between the parties. What is that? The evidence of witnesses of the respondent do not explain the same. Respondent’s own statement does not provide the clue. In spite of it, the respondent and his witnesses denied any cruel treatment towards the appellant. The appellant as P.W. 1 has stated that the sister of the respondent was to be married immediately thereafter and, therefore, she was being asked to bring Rs. 10,000/-. She had informed that this matter can be discussed with her father. The story of Rs. 10,000/- has not been stated specifically in the written statement, though the written statement does contain allegation that she was not being properly treated. This story, therefore appears to be exaggerated and cooked up, only to provide some supp’ort. Apparently, the appellant has also not spoken the whole truth in the Court and had tried to place exaggerated version of her grievance, presumably to gain some sympathy. In spite of it, Ex.P-8 contains these allegations. It is, therefore, submitted rather vehemently that there is no improvement in the version and its mere omission from the written statement would be only accidental. This Court is not prepared to accept this explanation. It is the burden of a party to specifically plead his/her case. It is equally well-settled that whatever has not been pleaded cannot be permitted to be proved. Under the circumstances, this Court must also hold the appellant guilty of exaggeration. In spite of it, it appears that it is not only the appellant, but also the
respondent, who had been getting ready to go to the Court. The fact that the respondent had been writing to the appellant by Regd. A/D. and keeping copies thereof would indicate anticipation. His letters would, however, indicate that there is nothing except the fact that except for the appellant’s not joining, there is nothing that can be characterised as cruel or intentional. In spite of it, the aforesaid does indicate that the respondent had suffered the mental tension and had been deprived of the benefit of the appellant’s company. Does it amount to cruelty, within the meaning of Section 13 of the Act? Before attempting analysis of the provision, the decision of the Supreme Court in Swarajya Lakshmi v. Dr. G. G. Padma Rao, AIR 1974 SC 165: (1974)1 SCC 58, may be referred to, wherein it has been observed that ‘divorce is not generally favoured or encouraged by Courts and is permitted only for serious and grave cases’. ‘Cruelty’, as contemplated under Section 13 has been considered by Courts time and again in the leading case of Dastane v. Dastane, AIR 1975 SC 1534. It was pointed out that social status, background, custom, family tradition, caste, community, upbringing, public opinion are some of the factors to be taken into consideration, while deciding whether the act of a spouse was cruel to the other spouse and sufficient to grant a decree for divorce. After the aforesaid decision, the Act was amended in 1976, which justifies taking a liberal view of the provision. According to the amended provision, it is not necessary to establish that the cruelty contemplated consists of conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The concept now appears to be that the cruelty should be of such a nature as to satisfying the Court that relationship between the parties has deteriorated to such an extent that it is impossible for them to live together, without mental agony, torture or disgrace. Now physical violence is not essential ingredient of cruelty. In spite of it, the burden of proof always remains on the party asserting cruelty. Under the circumstances, the evidence aforesaid be considered, in the context of liberalised view of cruelty to ascertain whether it establishes that it will be impossible
for the parties to live together as husband and wife. This Court having given its anxious consideration to all facts and circumstances of the case, is not satisfied that any such case has been established. What has been established is only some misunderstanding between the parties in the beginning of their matrimonial journey. Merely saying that parties are unhappy is not enough not even the unruly temper of a spouse or whimsical nature of a spouse is enough. The cruelty must not only consist of intentional act of the appellant, but also result in a reasonable apprehension in the mind of the appellant that it is not possible to continue the married-life. Conduct alleged must be judged upto a point with reference to victim’s capacity. In this regard Div. Bench decision of Calcutta High Court in Sm. Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary, AIR 1985 Cal 431, Full Bench of Bombay High Court in Dr. Keshaorao Krishnaji Londhe v. Mrs. Nisha Londhe, AIR 1984 Bom 413, and Kerala High Court Judgment in Gangadharan v. T. K. Thankam, AIR 1988 Ker 244, deserve notice. There is no allegation that the appellant has misbehaved with the respondent or any one in his family. His mother’s complaint is that she had kept quiet during her visit and the same cannot, by any stretch of imagination, amount to cruelty. Her complaint to the respondent about treatment given to her cannot be said to be an act of cruelty. It must be realised that age of Saint-Tulsi-Das, who propounded that women deserve to be chastised is long past and we are living in a country where equity is constitutionally guaranteed. Under the circumstances, it will not be possible to accept the appellant in any way inferior, as in the past and, therefore, she will not be expected to bear taunts or indifference, as in the past. Therefore, if the appellant made a complaint to the respondent, she cannot be said to have done anything, which would amount to cruelty. Her not returning home because of her studies can also not amount to cruelty, because she is entitled to prosecute her studies to develop her own personality and find her own place in the society. Similarly, her absence from the respondent’s own sister’s marriage can also not amount to
cruelty, because she was not free to travel of her own and come to attend the marriage. She had to depend on her father for being escorted and if in the absence of escort, she had failed to attend the marriage, the same may be unfortunate, but not an act amounting to cruelty.
6. In view of the aforesaid, this Court is not able to find any substance in the allegation of cruelty and is, therefore, pleased to differ with the view taken by the learned trial Judge. Learned trial Judge had only considered Ex.P-8 and condemned the appellant without considering the conduct of respondent. Indeed, it appears that the two facts, namely, (i) appellant’s refusal to join the respondent’s sister’s marriage and (ii) making complaints about behaviour, have weighed with the learned Judge in this regard. Though the learned Judge has quoted lot of decided cases in the judgment, they have been used only to provide support to the view already taken by him. It would have been better for the learned Judge to reach the conclusion on the basis of principles in those judgments. If the legal principles, as stated aforesaid had been taken into consideration, mere absence and that too unintentional, would not have been held to be cruelty. There is, therefore, a patent illegality in the judgment and for that reason, this Court is unable to accept the same.
7. The other ground for seeking divorce is desertion. Desertion, as is well understood, is not only living separately, but living separately must be accompanied by an intention to bring the relationship to a permanent and or animus deserendi. In this regard, the decision of Supreme Court in Bipinchandra Shah v. Prabhavati, AIR 1957 SC 176, deserves particular notice. In this case, it was also pointed out that leaving of matrimonial house is not a necessary criterion for determining the desertion. The concept was further elaborated in Lachman v. Meena, AIR 1964 SC 40 and Rohini Kumari v. Narendra Singh, AIR 1972 SC 459. In the instant case, the desertion is said to be consisting of appellant’s refusal to come to Satna and for no ostensible reason. It is respondent’s own evidence that
last time, when he went to Faizabad to bring the appellant back, she informed him that she was pursuing her law studies and would not be able to join him. It is not in dispute that the appellant has successfully completed her law studies, which indicates that the excuse was not fake, but real. In such a situation, she was not expected to give up her studies and join the respondent. The appellant had, in her written statement, made an unconditional statement that she was willing to go and stay with the respondent. She had also repeated this in her statement on oath. The respondent has been resisting any such effort. Under the circumstances, it cannot be said that the appellant had been staying away from the respondent with an intention to bring the matrimonial relationship to an end. The facts, on the contrary, indicate that she had earlier not joined the respondent for sufficient cause and thereafter the respondent has not been willing to keep her. Respondent’s statement in the Court that he will keep her only if her mother agrees to accept her would only indicate that he has adopted an unreasonable attitude. He first wanted a divorce by mutual consent and when he failed in his effort, he filed the present application. Adopting an attitude that reconciliation was out of place, the respondent seems to have false notions about his right as a husband. He also does not seem to be properly educated in divorce jurisprudence and is perhaps not aware of the fact that divorce in this country is not granted merely because it is asked for. These facts, in the opinion of this Court, do not justify a conclusion of desertion. The learned District Judge has unfortunately not considered this matter in the proper perspective and has reached the conclusion, which is not only illegal, but wholly unjustified.
8. Appeal succeeds and is allowed. The impugned judgment and decree are hereby set-aside and the application for divorce filed by the respondent is dismissed.