[CASE NUMBER] -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] (O&M) Date of Decision: 18.12.2014 [ENTITY] Appellant. Versus [ENTITY] Respondent. CORAM:- HON'BLE MR. JUSTICE [ENTITY]. HON'BLE MRS. JUSTICE [ENTITY]. PRESENT: Mr. [ENTITY], Advocate for the appellant. [ENTITY], J.
1. This appeal has been filed by the appellant-wife challenging the judgment and decree dated 17.11.2014 passed by the District Judge, Rohtak, whereby the petition filed by the respondent-husband under [SECTION] of the [ACT] (in short "the Act") for dissolution of marriage by a decree of divorce on the ground of cruelty, was allowed.
2. Sans unessential, the facts necessary for adjudication of the present appeal as narrated therein may be noticed. The marriage between the parties was solemnized on 18.11.2010 at Prem Nagar, Old Housing Board Colony, Rohtak, as per Hindu rites and ceremonies. After the marriage, the parties lived together as husband and wife at village Kharanti, but the marriage was not consummated. It was averred in the petition that the respondent and his family members were happy to get a postgraduate bride but the appellant was not happy with the marriage. On the day of the marriage, the appellant asked the respondent and his family members not to touch the gifts brought by her. She locked all her gifts in a room and kept the key with her. The appellant refused to have physical intimacy with the respondent saying that she was postgraduate whereas he was from the family of illiterate persons and, thus, she was not happy with the marriage. On the next morning, the respondent told about the same to his parents but they took it lightly with the hope that the things would improve with time. Even the appellant refused to do household work and left the matrimonial home after staying with the respondent for a week. After staying at her parental house for 20 days, the appellant was brought back by the respondent on the assurance given by her parents that she would change her behaviour and would cooperate with him and other family members. The appellant did not change her behaviour and started remaining silent. She also stopped talking to any one in the family. After 4-5 days of her returning from the parental house, she went to Delhi to join her duty where she was employed and on the same day she left her matrimonial home for going to her parental house without any intimation where she stayed for three months. After three months, she agreed to come back on the condition that she would not live in village Kharanti upon which the respondent agreed and took her to Delhi. In Delhi, she refused to have physical intimacy with the respondent and started creating nuisance. She stayed at Delhi with the respondent only for 7-8 days and during this period she neither cooked food nor washed clothes. The respondent called his maternal uncle to make her understand. The appellant insulted the respondent in the presence of his maternal uncle saying that Main Ish Anpad Gadhe Ke Sath nahi reh sakti. On the next day, his [ENTITY] came to meet him, but the appellant did not get up from the bed and he had to arrange tea for him from outside. Thereafter, the appellant expressed her desire to reside at Rohtak. The respondent told the act and conduct of the appellant to her elder sister who also tried her best to make her understand but to no effect. The respondent brought her to village Kharanti from where she informed her parents on telephone that the respondent and his family members would kill her. During night time, [ENTITY], brother-in-law of the appellant with one more person in an inebriated state came to his house and took the appellant with them. She stayed at her parental house for nine months. Thereafter, the appellant came to live with the respondent in the first week of January, 2012 but again left the matrimonial home after staying for 7-8 days without intimation to anybody. She made a complaint against the respondent and his family members regarding demand of dowry whereas no dowry was given in the marriage. They were called by the police and when they went to Police Station, the appellant did not turn up. On 25.11.2012, the respondent and his brother went to the parental house of the appellant to bring her back, but she refused to accompany them. Accordingly, the respondent filed a petition under [SECTION] of the Act for dissolution of marriage by a decree of divorce. The said petition was contested by the appellant by filing a written statement. Besides raising various preliminary objections, it was denied that the marriage was not consummated and pleaded that cohabitation had taken place between them. She denied all the allegations of the respondent but did not disclose any reason of her difference with the respondent. She stated that he wanted to remarry after getting divorce. The respondent filed replication controverting the averments made in the written statement and reiterated those made in the petition. From the pleadings of the parties, the trial court framed the following issues:-
1. Whether the petitioner-husband is entitled to a decree of divorce on the grounds as alleged in the petition? OPP
2. Whether the present petition is not maintainable? OPR
3. Whether the petitioner is estopped from filing the present petition by his own act and conduct?OPR
4. Relief.
3. In support of their respective claim, the respondent examined himself as PW1, his uncle [ENTITY] as PW2, [ENTITY] as PW3, brother [ENTITY] as PW4 and mother [ENTITY] as PW5 whereas the appellant had examined herself as RW1, her brother- in-law [ENTITY] as RW2 and her mother [ENTITY] as RW3.
4. The trial court on appreciation of evidence led by the parties while deciding issue No.1 in favour of the respondent held him entitled to dissolution of marriage by a decree of divorce on the ground of cruelty. While deciding issues No.2 and 3 against the appellant, the petition was held to be maintainable and the respondent had a right to file the same. Accordingly, the trial court vide judgment and decree dated 17.11.2014, allowed the divorce petition and dissolved the marriage between the parties by a decree of divorce on the ground of cruelty. Hence, the present appeal by the wife.
5. Learned counsel for the appellant submitted that the false allegations were levelled by the respondent and in fact, she was harassed and maltreated by the respondent over demand of dowry. It was further submitted that the respondent turned the appellant out of her matrimonial home as he wanted to remarry after getting divorce. It was urged that no cogent evidence regarding cruelty meted out to the respondent was produced but the trial court has wrongly granted a decree of divorce.
6. After hearing learned counsel for the appellant, we do not find any merit in aforesaid submissions.
7. [SECTION] of the Act empowers the Court to dissolve the matrimonial ties between the parties by a decree of divorce on a petition by either spouse where the said spouse has been treated with cruelty after the solemnization of the marriage. Cruelty has not been defined in the Act but various pronouncements of the Apex Court and other High Courts have outlined the scope of the term 'cruelty'. Cruelty is evident where one spouse treats the other and manifests such feelings towards him or her as to cause reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental. Whether a spouse is inflicted with physical cruelty or not, it can be judged on the basis of direct evidence whereas mental cruelty is to be inferred on analyzing the factual matrix of each case and drawing conclusion thereon.
8. The Apex Court in [PRECEDENT] had very elaborately analyzed the expression 'cruelty' as a ground of divorce under the Act. The relevant portion thereof reads thus:-
"Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been 'conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger.
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21. Cruelty for the purpose of [SECTION] is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
9. Further, setting out illustrative cases of mental cruelty, the Supreme Court in [PRECEDENT] had held as under:-
"No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
10. In the present case, specific instances of cruelty meted out to him have been narrated by the respondent whereas there is no specific denial of those allegations by the appellant. According to the appellant, the respondent wanted to remarry after getting divorce but this had not been corroborated by producing any evidence or in her testimony as RW1. Even the appellant while deposing as RW1 had not stated that she was harassed and maltreated by the respondent and his family members over the demand of dowry. She was required to substantiate the said allegation and simply stating that she was harassed and maltreated by the respondent and his family members was not sufficient. Nothing concrete with regard to demand of dowry as to who had raised the demand of dowry, what was the demand and when it was raised had been established. Further, RW2 and RW3 in their respective statements had not narrated the reasons for marital discord between the parties and stated that the respondent after divorce wanted to remarry. On the other hand, PW2 who visited the house of the respondent at Delhi stated that he had gone there to make the appellant understand but in his presence, the appellant insulted the respondent. The said fact finds support from the statement of PW3 also who had gone to Delhi to meet the respondent whereas the appellant did not get up from the bed and the respondent had to bring tea for him from outside. The said evidence has not been rebutted by the appellant. The marriage took place on 18.11.2010 whereas the divorce petition was filed on 31.1.2013. During this period of more than two years, the appellant stayed with the respondent only for a month or so which shows that she was not happy with the marriage and due to this reason she did not have physical relations with the respondent. The cumulative effect of the facts and circumstances point out to an irresistible conclusion that the respondent was treated with mental cruelty. The findings recorded by the trial court in this regard are as under:-
"30. The petitioner has pleaded all the allegations in detail and he narrated each and every incident in his petition. In the written statement the respondent has simply denied all the allegations to be false. Some of the allegations regarding her behaviour have not been specifically denied by her. There are reasons in every case for marital discord between the husband and wife and they are required to explain those reasons. The petitioner has explained all the reasons in detail, but the respondent has simply pleaded that the petitioner wanted to remarry after getting divorce. She did not explain any reason for the desire of the petitioner to remarry either in the written statement or in her evidence as RW1. Only in the cross- examination of the petitioner it was suggested to him that the respondent was harassed and maltreated by the petitioner and his family members over demand of dowry, but it is neither the case of the respondent that she was harassed and maltreated by the petitioner and his family members in connection with demand of dowry nor is stated so by the respondent in her statement as RW1. Moreover, simply stating that the respondent was harassed and maltreated by the petitioner and his family members over demand of dowry was not sufficient. It was required from the respondent to plead as to who had raised the demand of dowry, what was the demand and when it was raised and then to prove the same by evidence. Thus, the suggestion put to the petitioner that the respondent was harassed and maltreated over demand of dowry in absence of pleading and proof carries no weight. It rather goes against the respondent and shows that false suggestion was put to the petitioner regarding her harassment and maltreatment by the petitioner and his family members over demand of dowry.
31. Not only the respondent, but her brother-in-law [ENTITY] and mother [ENTITY], who are examined as RW2 and RW3 respectively, too did not state a single word about the reasons for marital discord between husband and wife and simply stated that the petitioner after getting divorce wanted to remarry. They again did not explain the reasons for the desire of the petitioner to remarry. There must be reasons for the petitioner to remarry if the allegation of the respondent on the said point is true.
32. The most important fact is that the respondent stayed with the petitioner only for a month or so. She stayed with him for one week after the marriage and thereafter for 20-25 days at two occasions and during the remaining period stayed at her matrimonial house. The marriage had taken place on 18.11.2010 and the present petition was filed on 21.1.2013. Meaning thereby, during this period of more than two years, the respondent stayed with the petitioner only for a month or so. It too suggests and supports the claim of the petitioner that the respondent was not happy with the marriage and it was the reason that she did not develop physical intimacy with him and misbehaved with him and his family members and efforts were made to make her understand not only by his family members but by her sister as well. Had the respondent explained the reasons of marital discord, then, of course, the position would have been otherwise and it was required to examine those reasons."
11. Learned counsel for the appellant was unable to demonstrate that there was any error or perversity in the findings recorded by the trial court being based on misappreciation or misreading of evidence which may warrant interference by this Court. Consequently, finding no merit in the appeal, the same is hereby dismissed.
12. Since the appeal has been dismissed in limine, [CASE NUMBER] is also dismissed.
([ENTITY]) JUDGE December 18, 2014 ([ENTITY]) gbs JUDGE