IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 278 of 1988 WITH CIVIL APPLICATION No. 6707 of 2002 WITH CIVIL APPLICATION No. 6723 of 2002 WITH CIVIL APPLICATION No. 6736 of 2002 WITH CIVIL APPLICATION No. 7170 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE D.A.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- BHARTIBEN PARESHKUMAR MEHTA & D/O JANAKRAI MANILAL Versus PARESHKUMAR SATISHKUMAR MEHTA -------------------------------------------------------------- Appearance: 1. First Appeal No. 278 of 1988 MS MAYA S DESAI for Petitioner No. 1 MR MANISH R BHATT for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.A.MEHTA Date of decision: 18/06/2003 CAV JUDGEMENT 1 This appeal is filed against the judgment and order dated 7/12/1987 delivered by Court No.9, City Civil Court, Ahmedabad in Hindu Marriage Petition No.288 of 1985. The marriage petition was filed by the husband (respondent herein) and the present appellant, viz., wife was the respondent in the marriage petition. For the sake of convenience, hereafter the parties shall be referred to as 'petitioner' and 'respondent' respectively as described in Hindu Marriage Petition. 2 On 2/2/1975 the petitioner and the respondent got married according to Hindu religious rites. Thereafter, they cohabited together as husband and wife at Ahmedabad and as a result of such cohabitation the respondent gave birth to a Son on 11/12/1975. The petitioner-husband preferred the petition against the respondent-wife seeking decree of divorce on the grounds of cruelty and desertion as provided in Section 13 of Hindu Marriage Act,1955 (The Act). 3 The case of the petitioner is that the respondent was short tempered in nature, insulted the parents of the petitioner, misbehaved with the petitioner and his parents by picking up quarrels on small trivial household matters. It is the say of the petitioner that these problems commenced right after the marriage was solmenized but the petitioner, on the assumption that these are usual problems at the commencement of married life, thought that passage of time would permit the things to settle down and the respondent would adjust in the new setup. However, the nature and the conduct of the respondent did not change, but she insisted for separation of the petitioner and his parents as a precondition to stay together. As the petitioner, being the only child of his parents, was not amenable to the said demand of the respondent, the relations between the spouses worsened. 4 The case putforth by the respondent wife is that the differences between the spouses were essentially due to the behaviour of the petitioner and the respondent-wife could not be blamed. That the petitioner did not take care of her; nor did he protect her from the illconduct of the parents of the petitioner. That the parents of the petitioner used to pick up quarrels with her and did not want her to reside in the marital home. That she had tried to pull on despite being insulted by the parents. That, there used to be the quarrels between her and her mother-in-law in relation to feeding of her son as well as in relation to other households chores to be attended to. She has denied all the averments made in the petition and stated that there was no cause of action which would entitle the petitioner to seek the decree of divorce. 5 The Trial Court framed the following issues and answered them respectively as recorded in para 4 of the impugned judgment. "1 Whether the petitioner proves that the respondent wife has after solemnization of the marriage deserted him for a period of two years and upwards prior to presentation of the petition and hence he is entitled to the relief claimed? 2 Whether the petitioner proves that the respondent wife has after solemnization of the marriage, treated him cruelly which entitles him to the relief claimed? 3 Whether there is any legal impediment in granting the relief prayed for under Sec.23 of the Hindu Marriage Act,1955? 4 Whether the petitioner proves that he is entitled to the custody of the minor child ? 5 What order and decree ? My findings on the above Issues, for the reasons recorded hereinafter are as under : Issue No.1 : In the affirmative. Issue No.2 : In the affirmative. Issue No.3 : In the negative. Issue No.4 : In the negative. Issue No.5 : As per the final order". 6 Ms.Maya Desai, learned Advocate appearing on behalf of the respondent wife stated that the Trial Court has erred in granting decree of divorce on the grounds of cruelty and desertion. 6.1 That if the incidents which are complained of by both the parties are taken into consideration they are relatable only to normal wear and tear of matrimonial life and at the highest it could only be stated that there was mal-adjustment between the spouses. 6.2 That, the Trial Court did not try to find out as to who was at fault and what was the cause for rupture of the matrimonial life. 6.3 That the entire judgment of the Trial Court shows that no question was put to the petitioner husband as regards the cause of rupture. 6.4 That no efforts were made by the Trial Court for reconciliation and the entire appreciation of evidence by the Trial Court was incorrect and wrong. 6.5 That the respondent wife was compelled to desert matrimonial home eventhough she had no intention to desert. 6.6 That the Trial Court had failed to ascertain as to whether desertion was without reasonable cause or not. 6.7 That neither of the ingredients of Section 13(1)(ib) of the Act had been found to be satisfied. 6.8 That regardless of whether reasonable cause was pleaded by the respondent or not, regardless of whether evidence in this direction had been led or not, Court ought to have presumed the existence of reasonable cause on the basis of facts and evidence on record. 6.9 It was therefore submitted that the impugned judgment and order were bad in law and the same be quashed and set aside and the appeal be allowed. 7 As against this, Mr.M.R.Bhatt, learned Advocate appearing on behalf of the petitioner contended that there was no error either in law or on facts, committed by the Trial Court which would require this Court to interfere with the impugned judgment and order. 7.1 That apart from the evidence of the petitioner, the respondent, as well as their respective fathers, there was evidence in the form of deposition of two outsiders, viz. (i) Premlattaben (Exh.35) who was neighbour of the petitioner and (ii) one Dineshbhai (Exh.27) a friend of the petitioner. 7.2. It was stated that the deposition of Dineshbhai categorically pointed out the misbehaviour of the respondent, with special reference to the trip undertaken by Dineshbhai and his wife together with the petitioner and the respondent. That both the couples were together for a period of 22 days and the said deposition had rightly been taken into consideration by the Trial Court for ascertaining as to who was at fault. 7.3 It was further submitted that the law in relation to burden of proof in such proceedings was that the petitioner was required to establish cruelty and/or desertion on the basis of preponderance of probability and not beyond reasonable doubt. That the petitioner had been able to do so successfully as could be seen from the evidence on record. 7.4 It was next contended that the concept of cruelty had to be appreciated in the context of the facts and that even a single instance was sufficient to prove the charge and in the present case the Trial Court had after appreciating the evidence on record concluded that charge was proved. 7.5 That similar finding had been recorded by the Trial Court in relation to desertion by the respondent wife. 8 Section 13 of the Act pertains to divorce and the grounds on which divorce may be granted have been set out. Clause (ib) of sub-section (i) of Section 13 states that the other party to the petition has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Explanation states that in this sub-section the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. Thus, the basic requirement is that the other party has forsaken and abandoned the petitioner without reasonable cause and without the consent or against the wish of the petitioner. Essentially the ingredients are the factum of separation and the intention to bring cohabitation permanently to an end. The Explanation widens the definition of desertion to include wilful neglect of the petitioning spouse by the other party. At the same time, such desertion viz.permanent forsaking and abandonment or wilful neglect has to be without reasonable cause, without the consent or against the wish of the petitioner. Therefore, it would become incumbent on the petitioner to prove desertion and also that such desertion was without reasonable cause throughout the statutory period of not less than two years immediately preceding the presentation of the petition. 9 In the case of Lachman Utamchand Kirpalani Vs. Meena alias Mota, (AIR 1964 SC 40), the Supreme Court held that the desertion was without cause and stressed the importance of avoiding the fallacy which lies in a failure to distinguish between a legal burden of proof which rests on the petitioner and a provisional burden raised by the state of evidence which may shift from one party to another. The legal burden throughout the case is on the petitioner to prove that the wife (for instance where the husband is the petitioner) deserted him without any cause. To discharge that burden he may rely on the fact that he asked her to join him and she refused. Once he proves that fact of refusal she may seek to rebut the inference of desertion by providing that she had just cause for her refusal. The standard of proof in case of all proceedings under the Act is that the Court must be satisfied on a preponderance of probability that the ground for relief is proved and normally the Court requires that the evidence of a spouse who charges the other spouse with a matrimonial offence should be corroborated". 9.1 In the case of Ramani Vs. Saraswathi (2000) 10 SCC 458, the Apex Court has stated that : "The question whether the wife was guilty of desertion or not is essentially a question of fact". 10 The petitioning spouse who avers desertion on the part of the other party to the marriage is required to prove the basic ingredients of desertion. However, if the other party to the marriage raises by way of defence, an existence of a reasonable cause, it is for that other party to plead and establish the same. In the case of Chetan Dass Vs. Kamla Devi, (AIR 2001 SC 1709), the Court held that the petitioning husband was not entitled to decree of divorce. The respondent wife in the said case, had in reply, alleged adultery against the petitioning husband and the Court found that the said allegation of adulterous conduct of the petitioning husband was established. The Court therefore held that the defence of the wife for having a justified reason to live away from the husband was correct and the husband could not be given advantage of his own wrong and be granted a decree of divorce on the ground of desertion on part of the wife. Therefore, once a party pleads a particular defence it is for that party to lead evidence in that regard and establish the same. 11 Clause (ia) of sub-section (i) of Section 13 of the Act states cruelty as a ground on which the marriage can be dissolved by a decree of divorce. The said provision has been explained by the Supreme Court in the case of Parveen Mehta Vs. Inderjit Mehta (2005 [5] SCALE 165) in the following words : "19. Clause(ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of his matrimonial offence. That doctrine is now repudiated and the modern view has been 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. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus, mental cruelty has to be established from the facts.(Mulla Hindu Law, 17th Edition, Volume II, page 91)". xxxxx xxxxx xxxxx xxxxx "21. Cruelty for the purpose of Section 13(1)(ia) 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 behavioral 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". 12 Cruelty can therefore be said to be an act committed with an intention to cause suffering to the opposite party. Cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence. It may be taken as equally well established that it is a wrong approach to put the various acts or conduct alleged into a series of separate compartments and say of each of them that by themselves they cannot pass the test of cruelty and, therefore, that the totality cannot pass that test. There may be cases where the acts complained of are in themselves so trivial that the court would be justified in not attaching any importance to them. On the other hand, acts not serious in themselves may be symptomatic of the pass to which the marriage had come and of the state of the minds of the parties. Since cruelty is to be inferred from the whole relations between the husband and the wife it would not be a proper approach 'to take up each alleged incident one by one and hold that it is not hurtful or cruel and than to say that cumulatively they do not amount to anything grave, weighty or serious. The relationship of marriage in the present context is not to be taken as just the sum of the number of incidents. The primary question in these cases is not a question whether the conduct complained of would be cruel to a reasonable person. The Court has not to deal with an ideal husband or ideal wife but with 'this man and this woman'. The Court will not start with any a priori assumptions that the parties are reasonable people. 13 In the case of Dr.N.G.Dastane Vs. Mrs.S.Dastane (AIR 1975 S.C.1534) the Apex Court while laying down principles regarding condonation of cruelty stated that condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. It is further stated that the evidence of condonation consists in the fact that the spouses led a normal sexual life despite the respondent's acts of cruelty by the offending spouse. That sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment. Therefore, the evidence showing that the spouse permitted restitution of conjugal rights even after a series of acts of cruelty would be proof that the other spouse condoned the cruelty. However, that by itself is not sufficient and not the only necessary ingredient of condonation, and the same has to be appreciated with other evidence. 14 In the present case cruelty is alleged by the petitioner as having been caused by the respondent. The respondent made a counter allegation of cruelty at the hands of the petitioner and/or the members of the family of the petitioner. The Trial Court has come to the conclusion that on the contrary, it is the respondent who because of her behaviour, has caused cruelty to the petitioner. It is further held by by the Trial Court that "in my opinion, analysing the evidence adduced, it is the respondent who has acted very irrationally and has ultimately without any reasonable cause left the matrimonial home". Thereafter, the Trial Court has further found from the deposition of the witnesses that the counter allegation made by the respondent wife of being treated cruelly by the husband and/or his family members is not proved because no evidence in this regard has been led on behalf of the respondent, while on the other hand the petitioner had examined one neighbour viz.Premlattaben and also his friend Dineshbhai who have corroborated the petitioner's allegation about the behaviour of the respondent. 15 In relation to submission on behalf of the respondent that even if cruelty having been caused by the respondent was proved by the petitioner, the same must be deemed to have been condoned by the petitioner because of revival of cohabitation between the parties and hence decree for divorce should not be passed, the Court has found that even if such condonation is presumed, the factum of desertion viz. leaving matrimonial home in November,1983 without having any reason so to do and leaving without consent of the petitioner and not returning to the matrimonial home or resuming cohabitation till filing of the petition would go to show that there was no reasonable cause and the respondent had deserted within the meaning of provisions of Section 13(1)(ib) of the Act. 16 The Trial Court has taken into consideration the evidence led by both the sides. On the one hand the deposition of the petitioner (Exh.16), deposition of Dineshkumar Somabhai Patel (Exh.27), deposition of Premlattaben Shantilal Mehta (Exh.35) and deposition of Satishchandra Mohanlal Mehta (Exh.40), and on the other hand on behalf of the respondent, deposition of the respondent wife (Exh.42) and deposition of Janakray Manilal Pandit (Exh.46) have been taken into consideration, apart from the other documentary evidence, letters, correspondence etc. 17 It is not necessary for this Court to reappreciate the entire evidence, however, to ensure that Trial Court has arrived at a just and fair conclusion some of the depositions have been taken into consideration. The approach of the Trial Court is not shown to be perverse : no relevant evidence has been ignored; no irrelevant evidence has been considered. 18 The petitioner has deposed that the respondent wife was not only rude in her behaviour but employed language which was offending in nature and insulted the elders of the family. In this context, it is stated that this conduct was not understood initially by the petitioner and the petitioner felt that these were incidents of mal- adjustment in the initial days of matrimonial life which would smoothen out by the passage of time. However, it is further deposed that respondent had thereafter stated that she did not wish to stay with the parents of the petitioner and the petitioner used to keep on explaining that he being the only child of his parents and the parents being aged it was not possible to set up a separate unit. It is further averred that the respondent wife declared that unless the petitioner is separated from his family she would not permit conjugal rights to the husband resulting in mental stress and frustration so far as the petitioner was concerned and as a consequence even his work suffered in the bank where he was serving. That the respondent went to her parents' place in September,1975 as she was carrying and ultimately delivered a baby boy on 11.12.1975. That in 1976 the petitioner's mother along with lady residing in neighbourhood went to Rajkot to fetch the respondent and her son but after staying at matrimonial home for a period of 20 days or so she was sent to her father's place due to her illhealth. Thereafter the respondent returned on 20/7/1976, but there was no change in her behaviour and she remained not only rude to the in-laws but also towards guests who would visit to see the newly born child. Thereafter, in or around February,1997 father of the respondent was transferred from Rajkot to Ahmedabad and the respondent without informing anyone left the matrimonial home with the child and went to her father's place in Naroda, Ahmedabad. Thereafter, it is averred that the petitioner went and brought her back. 18.1 It is further stated, in March,1977 the petitioner and the respondent along with Dineshkumar and his wife went for a trip to Kashmir for a period of 22 days. It is the say of the petitioner that during the entire trip the respondent not only did not enjoy the trip but did not permit the petitioner also to enjoy and stayed aloof from the petitioner. That the friend of the petitioner Dinesh Patel and his wife tried to patch up the differences between the petitioner and the respondent but there was no change in the behaviour of the respondent. This averment of the petitioner is corroborated by the deposition of Dinesh at Exh.27. 18.2 The petitioner has further deposed that in May,1977 the petitioner left matrimonial home. That in August,1977 after sending 3 or 4 messages, the respondent agreed to meet the petitioner. That when they met, the respondent stated that she had joined the course of librarian and that she would not return to the matrimonial home unless the petitioner was ready and willing to set up a separate dwelling unit. 18.3 The petitioner has further stated that in February 1978 there was "Vastupooja" of their new residential premises, being Tapovan bungalow in Ambawadi area, and for this purpose mother of the petitioner went to fetch the respondent. The respondent came to the matrimonial home, attended the "Pooja" and after two days again left the matrimonial home. 18.4 The petitioner has further deposed that once again in December,1978 he