1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 31 of 2003 Girish Gopinath Rallapali, residing at .. Floor, Yashwant Smruti Bldg. 12th Road, Khar (West) Mumbai 400 052. ...Appellant v/s. Kalavati Girish Rallapali r/at: Kal-bhairo Temple 15th Lane, Kamathipura Mumbai. ...Respondent Smt. Amarjeet Kaur, advocate for the Appellant. None for the respondent. CORAM:- A.M.KHANWILKAR A.A.SAYED, JJ. DATED:- JUNE 14, 2010. Oral Judgment ( PER A.M.KHANWKLKAR, J) 1. This Appeal takes exception to the Judgment and decree passed by the IVth Family Court, Mumbai at Bandra dated September 25, 2002 in MJ Petition A-1697/1996 to the extent it rejects the counter claim Petition filed by the Appellant-husband for decree of divorce on the ground that Respondent-wife 2 treated him with cruelty and also because the Respondent-wife had adulterous relations with the co-respondent after the solemnization of marriage with the Appellant. 2. The Respondent filed Petition for restitution of conjugal rights being MJ Petition A-1697/96 against the Appellant. In the said proceedings the Appellant filed counter claim Petition for divorce on 20th January, 1997. The Respondent filed reply to the said counter claim Petition and denied the allegations made therein. The matter went for trial. During the trial the Respondent examined herself as PW1. The Appellant not only examined himself as DW1 but also examined witness Ashok Talpade as DW2 in support of his plea that the Respondent had admitted her misdeeds in the meeting held at the residence of the said witness after the incident in question. Notably, the co-respondent Palep Lingana did not appear in the proceedings. In other words, he has neither countered the allegations made in the Petition against him nor chosen to appear before the Court and deposed on relevant matters to explain his position. The trial Court analyzed the evidence which has come on record and chose to discard the evidence produced by the Appellant. On that basis the trial Court concluded that the Appellant failed to establish both the grounds of cruelty as well as adultery against the Respondent and, therefore, dismissed the counter claim 3 Petition filed by the Appellant. This decision is the subject matter of challenge in the present appeal. In so far as relief of custody of the minor child is concerned, that has become infructuous due to distance of time. It is fairly conceded that the son Sankarsh has attained majority on 19th March, 2010. In that sense, this relief cannot be considered. 3. Besides the present appeal, other proceedings were filed by the Respondent-wife which were kept alongwith the present Appeal. The said matters came up for hearing on 8th June, 2010 alongwith present Appeal. As none appeared for the Respondent-wife, the said proceedings have been dismissed for non-prosecution. The present appeal was heard on 8th June, 2010 for substantial part of the day and the hearing continued on 9th June, 2010. On both these dates none appeared for the Respondent. Even today when the matter has been notified for pronouncement of Judgment, no appearance is made on behalf of the Respondent. In the circumstances, we are proceeding to decide the present appeal on the basis of assistance given by the Counsel for the Appellant. We have waded through the entire pleadings and evidence on record. We have also carefully examined the Judgment given by the Lower Court. 4 4. As aforesaid, in this Appeal we are only concerned with the issue as to whether the Appellant is entitled for decree of divorce on the ground of cruelty and/or adultery. We find that the trial Court has reproduced the oral evidence given by the respective witnesses in detail. We would, therefore, proceed to analyze the Judgment of the trial Court in the first instance. The trial Court has discarded the evidence of the Appellant (DW1) essentially on the ground that the conduct of the Appellant even after witnessing the incidents referred to in the Petition which indicated that the Respondent was having adulterous relationship with the co-respondent, he did not react in a normal manner but was content with merely questioning the Respondent and doing nothing more. This is the basis on which the evidence of DW1 has been discarded as unbelievable or untrustworthy version with regard to the facts deposed to by him in relation to the relevant events. In so far as the evidence of DW2 Ashok Talpade is concerned, the same has been discarded on the finding that he was an interested witness. The Court has noticed that he was the landlord in respect of the premises where the Appellant resided alongwith the Respondent . The Court then found that there was no good or tangible reason as to why the Respondent and co-respondent would make disclosure before him about their relationship or the fact that the Respondent had voluntary sexual intercourse with the co- respondent after the solemnization of marriage with the Appellant. After 5 discarding the oral evidence of DW1 and DW2, the trial Court concluded that there was no legal evidence to accept the case made out by the Appellant for grant of decree of divorce. The Court concluded that the entire evidence of Appellant-DW1 was on the basis of suspicion. Further, the Appellant took support from the evidence of DW2 Ashok Talpade to substantiate his suspicion. It proceeded to hold that there was no legal evidence to establish the fact about the illicit relations between the Respondent and the co-respondent. The Court also opined that non-examination of other witnesses by the Appellant in particular Madhu Shastri, his brother-in-law who was present at one of the meetings was also fatal. Accordingly, the Court rejected the allegation regarding voluntary sexual intercourse by Respondent with the co-respondent as alleged. 5. In so far as the ground regarding Respondent having treated the Appellant with cruelty, essentially the same was pressed on two counts. Firstly, that the Respondent even after marriage was not in a position to cook food. Secondly, after she gave birth to her son, she was not in a position to look after her son including to bathe the son. In so far as, this ground was concerned, the trial Court found that in the pleadings it was nowhere stated by the Appellant that the Respondent was unwilling to do the said work of cooking or looking after the child. The fact that she was not in a position to discharge her 6 matrimonial duties properly could not be the basis to grant decree of divorce, as her inability to discharge her matrimonial duties was because she was unable to do that work properly. On that reasoning, the trial Court negated the ground of cruelty pressed into service by the Appellant for decree of divorce. 6. We would first deal with the later ground. In so far as ground of cruelty is concerned, as aforesaid, it is only on two counts. Firstly, that the Respondent was unable to discharge her matrimonial duties of cooking food or doing household work. Secondly, she was even unable to look after the child properly. In so far as these facts are concerned, there is no difficulty in accepting the argument of the Appellant that the Respondent admitted that factual position. In her evidence, the Respondent has admitted that she was unable to cook proper food and also unable to properly look after the child. Further, that it is the Appellant who was forced to do the said work. Even so, we find no infirmity in the reason recorded by the lower Court that that by itself was not enough. It is not even the case pleaded by the Appellant that inspite of his request or for that matter even though the Respondent otherwise was in a position to properly discharge her matrimonial duties, she was not doing so only to harass the Appellant. We are in agreement with the view taken by the Lower Court that the fact that the Respondent was unable to discharge her matrimonial 7 duties properly by itself cannot be the ground to straightway grant decree of divorce. The conduct of the Respondent to grant decree of divorce in terms of Section 13(1)(i-a), what is to be established is that the Respondent treated the Petitioner with cruelty. The term cruelty has not been defined in the Act. The Counsel for the Appellant has invited our attention to the decision of the Apex Court in Sujata Uday Patil vs. Uday Madhukar Patil reported in 2007 AIR SCW 896. In Paragraph-7 of the said decision, the Court observed thus: The word “cruelty” and the kind or degree of “cruelty” necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kind of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display or temperament, emotion or pervasion whereby one gives vent to his or her feeling, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weight all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other 8 spouse is a necessary element in cruelty.” The term cruelty, therefore, will have to be understood as in common parlance. The Blacks Law Dictionary, Eighth Edition, defines the term cruelty as follows: “cruelty. The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage. Cf. ABUSE; INHUMAN TREATMENT; INDIGNITY. “When William Blake opined that “Cruelty has a common heart’, he posited the physical and emotional forms which cruelty may take. But when is one party so cruel to the other that it goes to the heart of the marriage and justifies dissolution? A New York court defined cruelty as bodily harm, or a reasonable apprehension of bodily harm, which endangers life, limb or health and renders marital cohabitation unsafe or improper. Some states are reluctant to permit divorce when there has been only emotional suffering without physical harm. And in a marriage of long duration, some courts require that the cruelty be more extreme to justify divorce than if the relationship has been brief. Acts constituting the ground must continue over an extended period of time unless they are so severe as to shock the conscience, or raise the probability that it would be unsafe for the innocent party if the couple remain together.” Walter Wadlington & Raymond C. O’Brien, Family Law in Perspective 73 (2001). We may usefully refer to the word ‘mental cruelty’ ‘mental anguish’ and ‘legal cruelty’, as defined in the said edition of Black’s Law Dictionary:- 9 “mental Cruelty - As a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.” “mental anguish – See Emotional Distress. emotional distress. A highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury) that results from another person’s conduct; emotional pain or suffering. Emotional distress, when severe enough, can form a basis for the recovery of tort damages. -- Also termed emotional harm; mental anguish; mental distress; mental suffering. See INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. Cf. Mental cruelty under CRUELTY. {Cases: Damages 48-56.20.C.J.S. Damages $$ 94-104; Parent and $ Child 344; $$ Torts 66-83} “Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea. It is only where it is extreme that the liability arises. Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed.” (Restatement (Second) of Torts $ 46 cmt. J (1965). 10 “legal cruelty – Cruelty that will justify granting a divorce to the injured party; specific., conduct by one spouse that endangers the life, person, or health of the other spouse, or creates a reasonable apprehension of bodily or mental harm. {Cases: Divorce 27.C.J.S. Divorce 22}.” 7. The question is whether the inability of the Respondent in discharging her matrimonial duties properly by itself can be ground to issue decree of divorce. Indubitably, something more is required than mere inability of the spouse to discharge his/her matrimonial duties. Besides the reasons recorded by the Lower Court, we may further add that admittedly the Appellant and Respondent were married at Mumbai according to Hindu Vedic Rites on 2nd June, 1991. Son Sankarsh was born out of the said wedlock on 19th March, 1992. The Appellant continued to cohabit with the Respondent notwithstanding the drawback of the Respondent in discharging her matrimonial duties properly until June 1996. The fact that the Respondent was unable to cook proper food or that she was unable to bathe the minor son and because of which the Appellant was forced to undertake the said work in addition to his other routine work and official duties. As aforesaid, the Appellant inspite of these deficiencies of the Respondent, cohabited with her from June 1991 till July 1996. If the Appellant was so frustrated because of the inefficiency and inability of the Respondent to discharge her matrimonial duties properly, there is nothing in the Petition as filed 11 by the Appellant to indicate as to why he continued to cohabit with the Respondent until July 1996. In our opinion, the Appellant has in that sense condoned the acts of commission or omission and the deficiencies and inability of the Respondent and continued to cohabit with her until July 1996. It is only in May 1996 and thereafter the Appellant started suspecting the behaviour of the Respondent, which is the main cause of separation between the two and institution of proceedings before the Family Court. Considering the matter even from this perspective, we find no reason to overturn the conclusion of the Lower Court in rejecting the ground of cruelty pressed into service by the Appellant. 8. That takes us to the other ground on which the Appellant prayed for decree of divorce. That is in the context of provisions of Section 13(1)(i) of the Hindu Marriage Act. In so far as this ground is concerned, the Appellant has relied on his evidence as well as examined Ashok Talpade– DW2. We have already indicated as to on what basis the Lower Court has negatived the claim of the Appellant in relation to this ground as well. 9. The question is: whether the view taken by the Lower Court in relation to this ground can be said to be correct, legal and proper, considering the pleadings and evidence on record. For that we shall straightway advert to the counter 12 claim Petition filed by the Appellant. In that counter claim Petition, Appellant has prayed leave to rely on the assertions made in the written-statement filed to oppose the Petition for restitution of conjugal rights filed by the Respondent . We shall not burden this Judgment with other details mentioned by the appellant in his written statement. In so far as ground under consideration, the Appellant has asserted that in May 1996 he had to go to Karim Nagar, A.P. to attend the wedding of his relative. While leaving for Karim Nagar, the Appellant requested the co-respondent Palep Lingana to perform various poojas on his behalf which the Appellant was performing at the residence of his Yajmans on regular basis. The said co-respondent Palep Lingana as per the said request performed the poojas at the residence of various yajmans of the Appellant during the said period. However, when the Appellant returned from Karim Nagar, he suspected illicit relationship between the Respondent and the said Palep. In the end of May 1996, when he was unwell due to viral fever, in the night when he was feeling uncomfortable, he got up at about 2.00 a.m. and proceeded to toilet. When he got up, he was surprised to see that the Respondent was not in her bed. Instead, when he went to the hall, he found that the Respondent and said Palep Lingana were together. The Respondent was seen half undressed and was putting on her clothes. The Respondent on seeing the Appellant pretended as if she had come to the hall to take supari from the Palep’s bag. The Appellant, 13 however, noticed that the buttons of her blouse were open and could not say anything because of the shock. Next morning when the Appellant got up, Palep who was staying in the same premises had already left. When Appellant confronted the Respondent, she gave evasive replies and denied that she had any adulterous relationship with co-Respondent Palep Lingana. The Appellant warned the Respondent not to allow the said Palep to enter their residence. Inspite of those instructions, when the Appellant came home from his work at 1.00 p.m., he found smell of tobacco all over the room. The Appellant suspected that Palep Lingana who is habituated to eating tobacco must have come during his absence. The Appellant questioned the Respondent about the presence of tobacco in the house to which the Respondent did not give any proper reply. These are the instances mentioned in the Petition. The Appellant has then asserted that later on four days after the earlier incident, when the Appellant came home in the afternoon, he found co-respondent Palep Lingana was cooking food. It is the case of the Appellant that the co-respondent used to visit during his absence when the Appellant was away to perform his daily pujas which timing was known to the co-respondent . The Appellant has given these instances to indicate the behaviour of the Respondent . It is his case that the Respondent on being questioned was not in a position to offer any convincing reply. Later on, the co-respondent Palep left for his native place. It is then 14 stated that on 16th July, 1996 when the parents of the Respondent came to his residence, he disclosed the adulterous relationship between the Respondent and said co-respondent Palep Lingana. The parents of the Respondent questioned her in presence of the Appellant. Initially, the Respondent denied that she had adulterous relationship with Palep, however, when her mother got angry and gave 2-3 slaps on her face, the Respondent told her parents and the Appellant that on 9th May, 1996 when the Appellant had gone to Karim Nagar, the said Palep had raped her. She further stated that she did not disclose that fact to the Appellant or her parents out of fear. On that the Respondent’s parents told the Appellant to take action in the matter. The Appellant then consulted a social worker who in turn advised that the Appellant should not lodge a complaint at the khar police station but instead can tell the police officer to record Respondent ’s statement. This suggestion was made as the Appellant used to perform pujas at Khar police station as poojari. When the Appellant made that arrangement, the Respondent refused to give any statement. The Respondent then disclosed that said Palep after raping her, on the next morning he removed her mangalsutra and told her that she had sinned. Thereafter, he purified her mangalsutra with Tulsi water and recited some mantras and tied the same mangalsutra around the Respondent’s neck and told her that in presence of the Appellant they will behave like uncle and niece but when they are alone, they 15 would behave like husband and wife. The Respondent further disclosed that she continued to have adulterous relations with the said Palep and he assured that the Appellant will never come to know of the same. It is the case of the Appellant that the Respondent also disclosed that she was pregnant with the Palep’s child and gave medical report of Nair hospital which mentions that she was pregnant. She stated that she later on underwent abortion. Hearing this statement of the Respondent, the Appellant was shocked and shattered and told the Respondent to leave his home as he could not live with her any more. It is the case of the Appellant that Respondent then phoned her parents and they came at about 11.00 p.m. alongwith Palep and some family friends. In order to impress the said friends, the Respondent’s parents started denying their daughter’s adulterous relations with said Palep. They then took the Respondent and the minor son alongwith them. They went to the residence of Shri Ashok Talpade (DW2) who was the Appellant’s landlord and a social worker. The written statement then refers to the meeting with Ashok Talpade who in turn asked them to come the next morning. In the meeting on the next morning the Respondent alongwith her parents and Palep were present at the house of Ashok Talpade. On questioning the Respondent admitted in the presence of Ashok Talpade that she was living in adultery with the said Palep. She commented that even the Petitioner must have indulged in same way when he was studying in 16 College. It is the case of the Appellant that thereafter Ashok Talpade questioned the co-respondent Palep who was also present. He admitted the entire episode including the purification of mangalsutra disclosed by the Respondent. The written-statement then refers to the other incidents of 13th August, 1996 and 15th August, 1996 when Shamsunder with all the relatives of the Appellant had come to his house and stayed with him and thereafter left alongwith the Respondent. This version has been reiterated in the counter claim Petition dated 20th January, 1997 and on that basis it is prayed by the Appellant that decree of divorce in favour of the Appellant be passed and against the Respondent dissolving their marriage performed between them on 2nd June, 1991. Further relief of custody of minor son was also claimed in the counter claim Petition. 10. The allegations made in the counter claim Petition came to be refuted by the Respondent-wife by filing reply. The Respondent-wife has denied each of the allegations contained in the counter claim Petition. In so far as the co- respondent is concerned, in the reply although the Respondent has denied that the co-respondent is a distant cousin of her father but at the sametime it is admitted that he was virtually a family member of the Appellant. The Respondent has given justification for the said assertion. She has stated that the profession of the Appellant and the co-respondent was of pujari and priest 17 and they were from common Telugu Yajurvedi Brahmans. She has further stated