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 -------------- P R E S E N T 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 - 2 - 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 - 3 - 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 - 4 - 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 - 6 - (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 - 7 - 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 71st 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 - 10 - 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 - 11 - 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 - 12 - 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 - 13 - (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.