JUDGMENT [ENTITY], J.
1. The appellant is hereby assailing correctness, propriety and legality of the judgment and decree passed by 9th Addl. District Judge, Indore in the matter of [CASE NUMBER] wherein he has passed a decree of divorce in favour of respondent [ENTITY] and against the present appellant-[ENTITY] dissolving their marriage in view of provisions of [SECTION] of [ACT] (hereinafter referred to as Act for convenience).
2. Few facts need to be stated for the purpose of unfolding the matter. Both the appellant and the respondent were married 10-12-85 at Indore as per Hindu rites and ceremonies. After marriage they cohabited together at Indore till they were separated on 22-1 -93, when respondent/left their house situated in Rajwada Chock Indore for staying with his parents in the house situated in Patrakar Colony, Indore. The spouses are having two children one daughter and a son; both are taking education.
3. The respondent filed a petition for the purpose of getting a decree of divorce in his favour and against the appellant for dissolution of their marriage on 16-6-93. In that petition he alleged (i) that petitioner being a woman from Maharashtrian family, was adopting dominant attitude in their matrimonial life and dictating terms to the extent that she was asking him to part with the salary by handing it over to her; (ii) that she was spedning money on luxurious articles like saries, fridge etc. and was not listening to the advice of the respondent in that context, (iii) that the appellant was making allegations against respondent that he was having illicit relationship with women more particularly with one Miss [ENTITY].
4. The appellant [ENTITY] denied these allegations in her written statement. She averred that she was never dominant in their matrimonial life and was never spending money as alleged by the respondent - the husband. She also denied that she made allegations against respondent husband that he was having illicit relations with women more particularly with [ENTITY].
5. The respondent husband averrred in the petition that on account of this behaviour of [ENTITY] respondent was put to such mental cruelty that the it was intolerable for him. He averred that on account of that cruelty, it was impossible for him to live with [ENTITY] as husband and wife. Thus, he prayed for decree of divorce.
6. Respondent- [ENTITY] examined himself and his friend [ENTITY] in support of his case. The appellant [ENTITY] examined herself. Learned trial Judge disbelieved the evidence of [ENTITY] and his friend [ENTITY] so far as allegations which were made in context with [ENTITY] and illicit relationship with her. He disbelieved both of them on the point of their evidence in respect of alleged quarrel between [ENTITY] and [ENTITY] at his friend's house in context with relationship between [ENTITY] and [ENTITY] and his friends's intervention in the said quarrel. Learned trial Judge also disbelieved the evidence of both [ENTITY] and [ENTITY] in respect of queries alleged to have been made by [ENTITY] in respect of behaviour of [ENTITY]. Finally, the learned Judge recorded afinding against [ENTITY] disbelieving his allegation of cruelty at thehands of [ENTITY]. However, learned Judge arrived at the conclusion that [ENTITY] had made allegations against [ENTITY] in Ex. P.4 and Ex.P.5 which were false and mala fide. He also held that [ENTITY] had made statement in the Court that [ENTITY] had married with [ENTITY]. Learned trial Judge also held that on account of this, [ENTITY] sustained mental pain and agony. He further held that on account of this mental pain and agony [ENTITY] was entitled to get decree of divorce against his wife [ENTITY] by dissolution of their marriage. This judgment and decree is being assailed by [ENTITY], the wife in this appeal.
7. Mr. [ENTITY], learned counsel appearing for the appellant, [ENTITY] argued that learned Judge disbelieved the evidence of respondent [ENTITY] and his witness [ENTITY] inrespect of the alleged verbal clash between [ENTITY] and [ENTITY] in respect of alleged illicit relations between [ENTITY] and [ENTITY] and a quarrel resulting out of that which required intervention of [ENTITY]. He argued that it was not proper and legal for the learned trial Judge to grant a decree of divorce in favour of respondent [ENTITY] and against appellant [ENTITY]. He further submitted that when the learned trial Judge also disbelieved the evidence of [ENTITY] and [ENTITY] in respect of alleged behaviour of [ENTITY] of making queries in respect of behaviour of [ENTITY], it was not proper for the trial Judge to conclude that by such behaviour of [ENTITY], [ENTITY] was put to agony.
8. Mr, [ENTITY] submitted that learned trial Judge has misinterpreted the evidence on record. He pointed out that in her evidence [ENTITY] has clarified that in the month of April, 94, [ENTITY] had come to [ENTITY]'s house along with [ENTITY] and [ENTITY] had a talk with [ENTITY] in which [ENTITY] had told her that she had married with [ENTITY]. He submitted that this statement given in the evidence does not mean that she made allegations against [ENTITY] of having illicit relation with [ENTITY]. He also pointed out that Ex. P.4 and P.5 also do not contain such allegations which would mean that [ENTITY] was making such allegations against her husband [ENTITY].
9. Mr. [ENTITY] further argued that there is absolutely no ground of granting of decree of divorce dissolving the marriage between appellant and respondent and the learned Judge has passed such adecree which is incorrect, improper and illegal and therefore, it needs to be set aside.
10. Countering to this Mr. [ENTITY], counsel appearing for the respondent argued that though learned trial Judge has disbelieved the evidence of [ENTITY] and [ENTITY]. learned Judge has rightly pointed out that in Ex. P.4 and P.5 she has made allegations against [ENTITY] alleging that [ENTITY] was having illicit relationship with [ENTITY] which has amounted to such cruelty which was sufficient ground for passing decree of divorce in his favour dissolving their marriage. Mr. [ENTITY] further argued that question in that context has been also asked in the cross-examination of [ENTITY], that also amounted to cruelty. He justified the impugned judgment and decree as correct, proper and legal and submitted that this appeal be dismissed.
11. Mr. [ENTITY], counsel appearing for respondent [ENTITY] placed reliance on the judgment of Calcutta High Court in the matter of [PRECEDENT] as well ason the judgment of Supreme Court in the matter of [PRECEDENT]. He submitted that if such baseless allegations arc made by spouses against other that amount to cruelty which entitles such a spouse to obtain decree of divorce.
12. So far as the divorce on the ground of mental cruelty is concerned, the judgment of Supreme Court in the matter of [PRECEDENT] has to be kept in view. In this matter the Supreme Court has elaborately discussed as to whai 'cruelty' means. The Supreme Court held at page 1539 -
"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. This principle accords with common sense 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 [SECTION] of [ACT]."
In paragraphs 50 and 51 of the said judgment, by quoting various instances, the Supreme Court concluded that in that case the conduct of respondent wife clearly amounted to cruelty within [SECTION] of the Act. Those instances were the threats by the wife that she will end her life by putting herself on fire, the threat that she will make him lose his job and have the matter published in the newspapers and the persistent abuses and insults hurled at the husband and his parents. The instances like tearing of [ENTITY], locking out the husband when he is due to return from the office, rubbing chilly powder on the tongue of an infant child, beating a child mercilessly while in high fever and switching on the light at night and sitting by the beside of the husband merely to nag him were treated to be acts tending to destroy the legitimate ends and object of matrimony.
13. In the matter of [PRECEDENT] (supra), the respondent wife in that case soon after her marriage with appellant, became suspicious about his character and used to doubt that the appellant was in illicit connection with his own sister-in-law (elder brother's wife). Calcutta High Court held in that case that caused serious mental pain and agony to the appellant inasmuch as it has been slated hy the appellant and also pleaded by him in his petition that he held his sister-in-law in high esteem like his mother and it was under her care and affcclion that he was brought up and it was she and hisclder brother who arranged his marriage with the respondent. In those circumstances Calcutta High Court held considering the social status of the appellant, who was working as an officer - Branch Manager of United Commerce Bank that that behaviour on the part of the respondent amounted to mental cruelly and it gave sufficient reasons for the said appellant to think that it would not be safe for him to live with the respondent.
14. In the matter of [PRECEDENT] (supra), the Supreme Court held that at page 717 (of AIR 1994) -
"Mental cruelty in [SECTION] can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other wor ;, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner.
The Supreme Court further observed that -
"While arriving at such conclusion regard must be had to the social status, educational level of the parlies 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 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 of the case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
15. Mr. [ENTITY] has pointed out in his submission that in the present case some questions have been asked to [ENTITY] in the cross-examination which amounted to allegaions of his illicit relationship with [ENTITY]. He argued that this amounted to such cruetly which made the respondent impossible to live with [ENTITY] as husband and wife. He pointed out the instances which were quoted in the matter of [PRECEDENT] (supra). The facts in said case were different and the conduct was different. In that case the husband was a practicing advocate in Supreme Court and High Court and the wife was working as Vice-President in a Public Sector Corporation. In her written statement and questions put by her counsel to the petitioner in cross-examination, were the allegations that the petitioner is a mental patient, that he is not a normal person that he requires psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations and that he and all the members of his family are a bunch of lunatics. In that case the Supreme Court had considered the possibility of damage to the practice of such advocate who was practicing in the Supreme Court and High Court. In that case wife was bent on making such allegations repeatedly, persisently. After appreciating the evidence in that case, the Supreme Court had come to the conclusion that though it is said that marriages are made in heaven, said marriage was turned into hell. Supreme Court had considered in that case that "merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor a merely delay in disposal of the divorce proceedings by itself is a ground for that. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable break-down of the marraige is not a ground for divorce by itself. But while scrutinising the evidence on record to determine whether the ground alleged is made out and in determining the relief to be granted, the saidcircumstance can certainly be borne in mind. Such unusual step can be resorted to only to clear up an insoluble mess, when the Court finds it necessary in the interest of both the parties.
16. [SECTION] of [ACT] reads :
"(1) Any marriage solemnised, 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 (ia) has after solemenization of the marriage treated the petitioner with cruelty."
This cruelty contemplated by the sub-clause is both physical and mental.
17. In the present case the attention has to be adverted to mental cruelty and that too in context with the averments in respect of allegations of having illicit relationship with [ENTITY] on ground put forth as cruelty.
18. Mental cruelty in [SECTION] cart broadly by defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party can not reasonably be asked to put up with such conduct and continue to live with the other party."
19. Lord [ENTITY] in [PRECEDENT] has observed -
"No one has ever attempted to give a comprehensive definition of cruelty and I do not intend/ try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirements that the party seeking relief must show actual or probable injury to life, limb or health. It is easy to see that the origin of this requirement is the decision in the well known case of [PRECEDENT]."
Lord [ENTITY] observed -
"It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, 1 think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it."
20. Therefore, the evidence which ison record has to be carefully scrutinised so as to come to a conclusion whether the respondent husband has proved that behaviour of appellant [ENTITY] was amounted to such cruelty which would not reasonably permit him to cohabit with her as husband and wife. Respondent [ENTITY] had stated in hisevidence that after marriage [ENTITY] cohabited with him properly. But thereafter started telling him that she would be managing the affairs of the home. It is his evidence that she insisted that he should hand over the salary to her and she would be spending out all that for their domestic needs. He stated in his evidence that she used to spend extravagantly and whenever he used to prohibit her, she used to quarrel with him and that was causing mental agony to him. He stated in his evidence that whenever he used to be late, [ENTITY] used to make query about him in his office. He further stated that she used to quarrel thereafter with him after his arrival at home. He made a statement in his evidence that [ENTITY] used to make queries at railway station with his friends about his character. He stated that whenever there used to be quarrel between them, [ENTITY] used to go to her parents' house and used to come only after [ENTITY]'s visit to her parents' house.
21. In his evidence he stated that once on account of the complaint made by [ENTITY], he was transferred thrice in a year. He also stated that [ENTITY] had made allegations against him in Ex. P.4 and P.5 that he had illicit relations with [ENTITY], and had alleged that he wanted to x marry that [ENTITY].
22. [ENTITY], witness examined by [ENTITY] for substantiating his evidence had stated in his evidence that [ENTITY] was expressing suspicion in respect of the character of [ENTITY] and used to make enquiry at his house on telephone asking a question whether [ENTITY] was seen moving with any woman. He further stated that she used to tell him to advice [ENTITY] not to do so. It is his evidence further that once there was quarrel between [ENTITY] and [ENTITY] at his house on allegation in context with [ENTITY] and on account of that he had to intervene. In the cross-examination this witness admitted that she generally used to make enquiry with common friends of [ENTITY] and [ENTITY] and the staff members working in their office. He also stated in the cross-examination that he had advised both of them to be sober,
23. Learned trial Judge has rightly disbelieved the evidence of both these witnesses on account of discrepancy in their evidence. Had there been truth in the evidence of these two witnesses in respect of said quarrel between [ENTITY] and [ENTITY], at his house, which required inte rvention of [ENTITY], [ENTITY] wouldhave definitely stated that in his evidence when he was claiming decree of divorce on the ground of said suspicion and resultant cruelty but [ENTITY] has not stated anything in that context. Had there been truth in evidence of this witness, [ENTITY] would have enquired from common friends and the staff members of the office whether [ENTITY] had made enquiry with them in respect of such suspicion. Both of them have not stated the instances when such allegations were made by [ENTITY] on various occasions.
24. So far as allegations of spending extravagantly is concerned, [ENTITY] had not adduced any evidence in respect of that. He has also not adduced any evidence in respect of allegations of frequent visits of [ENTITY] to her parents house. Had there been truth in it, he would have stated all that. Besides that women are known for spending more and visiting their parents house more. Quarrels on account of economy in spending is a common feature of the present day life, and bickerings on account of that between spouses is not also unknown phenomenon. After all that is wear and tear of matrimonial life perhaps on account of escalating prices which majority of the persons are required to face.
25. I examined Ex. P.4 and P.5 as well as the matrimonial petition filed by [ENTITY], and the initial notice which has been sent by him to [ENTITY]. The said notice does not make any mention of the alleged suspicion expressed by [ENTITY] about illicit relations of [ENTITY] with [ENTITY]. Had there been such suspicion and pecking of [ENTITY] on that account, [ENTITY] would have definitely mentioned about that in his notice. Mr. [ENTITY] has submitted that said notice has been received by [ENTITY]. [ENTITY] has stated in her evidence that she did not find it necessary to reply the notice. Her case cannot be thrown out only on account of her failure to give reply to such notice. May be. that she is a wife who wants to stay with her husband, she might have taken it not seriously. It is pertinent to note that the averments of' allegations on the part of [ENTITY] of illicit relation of [ENTITY] and [ENTITY], have come in the pleadings by way of amendment. That was not the case of [ENTITY] initially when the matrimonial petition was filed. It may be on account of Ex. P.4 and P.5. The affidavits filed by [ENTITY] in the Court. It exhibits that [ENTITY] is bent on to take advantage of those two affidavits for the purpose of obtaining a decree of divorce , for dissolution of their marriage.
26. In Ex.P.4 para 5, it has been averred that some years prior to 5-8-1993 (when the said, application was presented), [ENTITY] had presented a proposal to [ENTITY] that she should be ready for dissolving their marriage. It has been averred that [ENTITY] had told [ENTITY] that in that case if [ENTITY] was ready to dissolve said marriage between them, [ENTITY] was ready to hand over custody of their two children. This can not be treated to be an allegation alleging possible illicit relationship between [ENTITY] and [ENTITY] by present appellant, [ENTITY]. She has not alleged that way. On the contrary, she has stated that what was the proposal which was made to her by [ENTITY] for change of custody of children.
27. Ex. P.5 in para 8 it is mentioned that it has been averred that [ENTITY] is unable to take care of the children because he happens to be engaged in work of [ENTITY] who happens to be a Congress leader. It has been alleged in that para that [ENTITY] was not fit to protect and bring up their children. This also does not amount to be an allegation alleging illicit relationship between [ENTITY] and [ENTITY]. She has only averred that on account of his being engaged in doi ng personal work of said [ENTITY], [ENTITY] was notable to take care of their children and was unable to bring them up properly. By no stretch of imagination this cannot be treated to be an act of [ENTITY] of making a baseless allegation against her husband, alleging him of having illicit relationship with [ENTITY]. On account of association with that woman or by doing some private work of a woman, it cannot be said that they have illicit relations between them unless there is sufficient material to conclude that way positive!.
28. Mr. [ENTITY] has pointed out that it has been stated by [ENTITY] in her evidence that in the month of April, 1994 [ENTITY] had come to her house and had told her that she had married with [ENTITY] and, therefore, [ENTITY] should divorce her husband. This also does not amount to making allegations of unchastity against husband. She has narrated what [ENTITY] had told her.
29. Making allegations of unchastity by spouse to another has to be with intention of making such allegations. Merely giving the narration of what somebody has said does not amount to making the allegations of unchastity. It must have the animus of making such allegations. Allegations should be deliberate and pin pointed sufficient enough to cause mental injury.
30. Same is the case in respect of the questions which were put to [ENTITY] in his cross examination. Those questions also do not amount to allegations made against him charging him of illicit relationship. They are not baseless and intending to cause mental injury to [ENTITY].
31. "Jealousy thy name is woman". It may be a normal phenomenon in the married life of many persons. Does it amount to making the allegations against the husband charging him of unchastity? Does it amount to making the allegation against him of unchastity? No, unless it is baseless, malignant and disgusting. While assessing the evidence in respect of such averments, the Court has to be cautions about it because by such allegations and loose statements, some other person is likely-to be maligned so far as his or her charcter is concerned. In the present case much has been said about [ENTITY] without giving her opportunity of putting her say. Such allegations would be damaging her in her character, reputation and mind also. It was totally improper for the learned Judge to grant divorce in favour of respondent [ENTITY] and against the appellant on such documents Ex.P.4 and P. 5 without making [ENTITY] a party to proceedings. That may amount to a stigma to said [ENTITY] who had no opportunity of defending herself from such allegations. When such allegations are made in the matrimonial petition such person must be impleaded as party and has to be awarded opportunity of putting his or her csae. Reckless statements made against such person without pleading him or her in the matrimonial petition cannot be said to be proper and legal.
32. "Cruelty" is a relative tern. It varies from person to person, and case to case. The allegations and conduct does not amount to cruelty in every case. It depends on the status of spouses, atmosphere in| which they live. That has to be understood by seeing neatly the back ground behind it and effect which is likely to be caused by such allegations and conduct.
33. Thus, learned trial Judge had without appreciating the evidence on record properly jumped to the conclusion of mental cruelty from appellant [ENTITY] to respondent [ENTITY]. Such statements which are mentioned in Ex. P.4 and P.5 are not fulfilling the requirement of [SECTION] of the Act which would enable the affected spouses to get the decree of divorce by dissolution of their marriage. It does not amount to making him impossible to live with the spouse in matrimonial tie. In the present case the evidence recorded was not sufficient to warrant a decree of divorce in favour of the respondent [ENTITY] and against the appellant.
34. The appellant and respondent are having two children - a daughter and a son. Learned trial Judge should have also considered that. On such flimsy ground a decree of divorce cannot be granted putting future of such children to jeopardy. By such decree of divorce their future would be maligned and that would also be a stigma in their entire future life. That would shatter their minds also.
35. Thus, I have no hesitation in coming to the conclusion that decree of divorce dissolving marriage between the appellant and respondent is not correct, proper and legal; that has to be set aside.
36. The appeal is allowed with cost. The decree of divorce dissolving marriage of appellant and respondent passed by the 9th Addl. District Judge, Indore stands set aside. Counsel fee Rs. 500/- (five hundred).