IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (HMA) No. 486 of 2002. Judgment reserved on : 22.8.2007 Date of Decision: 23.10. 2007. Shri Chand Parkash Sharma …..Appellant. Versus Smt. Kaushlya Devi ……Respondent. Coram The Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Bimal Gupta, Advocate. For the Respondents: Mr. Bhupinder Gupta, Sr. Advocate, with Mr. Janesh Gupta, Advocates. Dev Darshan Sud, J. This is the husband’s appeal against the judgment of the learned District Judge, Solan, dismissing the petition filed by him under Section 13 of the Hindu Marriage Act,1955 (hereinafter referred to as the Act) praying for divorce on the ground that the petitioner has been treated with cruelty and as such the marriage be annulled by a decree of divorce. The petition was resisted by the respondent on a number of grounds and she had expressed her willingness before the learned trial Court to live with 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - the husband. She was asked to be present in this Court, and, she again expressed her desire to live with her husband. No reconciliation could be effected despite the best efforts made by me. This is a rather unfortunate case where petition for divorce has been filed before the learned District Judge by the parties after a period of more than 21 years of marriage. The parties to this petition have one son who is now employed and happily settled in life The allegations of cruelty which have been leveled by the petitioner are that after the solemnization of the marriage the parties were living a normal life for sometime. The respondent did not like staying in a joint family of the petitioner which consisted of his three younger brothers and two sisters. It was pleaded that the appellant being eldest in the family, was taking care of the other members of the family in accordance with the obligations imposed upon him by Hindu custom and usages. He pleaded that the respondent started finding faults with the members of his family and pressurizing the appellant to stay away from them in a separate residence. The appellant alleges that in order to maintain matrimonial peace, he did not protest, which was interpreted by the respondent as a sign of weakness and she continued with her acts/behaviour with belligerence. So much so, the respondent started treating the brothers of the of the petitioner with disrespect. It is also pleaded that respondent abstained from matrimonial sexual relations, starting quarreling on minor pretext(s) with regular frequency causing unbearable mental tension to the petitioner. Although efforts were made to patch up the matter but he remained unsuccessful in his endeavour. It is also pleaded that arrangements were made between the parties to live in peace in separate residence and for this purpose - 3 - appellant was to provide Rs.1600/- per month as maintenance in addition to separate living accommodation to her which he did. A petition under Section 10 of the Hindu Marriage Act, 1955 for restitution of conjugal rights was also filed by the appellant which was pending at the time of institution of this petition. The appellant alleges that after the filing of that petition, he was shocked to know that false allegations have been made by the respondent in writing to his superiors in which it was alleged that the appellant was exercising fraud to obtain divorce from the respondent; was having extra marital affairs, he had children outside the wedlock and posed grave danger to the life and limb of the respondent. The respondent was aware that these allegations are false and would also adversely affect the reputation of the petitioner and expose him to disciplinary action. According to the appellant these allegations individually or jointly constituted mental cruelty as envisaged by the Act. The respondent is alleged to have gone to the extent of saying that the petitioner is of a loose moral character having sexual relation with all kinds of women. The respondent resisted the petition on a number of grounds. The learned District Judge, after consideration of the oral and documentary evidence held that the charges of cruelty were not established. It was not disputed before the Court below that the petitioner, had, after solemnization of marriage improved his educational qualifications and was conferred a degree of Doctorate. The respondent had read only upto the middle standard. At the time of marriage, the petitioner was studying for his B.Com. degree. The Court held that the relationship between the parties had become skewed because of the - 4 - disparity in their educational qualifications. On an appreciation of the entire evidence, it was concluded that it was the petitioner himself who was responsible for creating a situation resulting in tension in matrimonial relations and under no circumstances he could be allowed to take advantage/benefit of his own acts and pray for dissolution of the marriage on the grounds as pleaded. Learned counsel appearing for the parties have placed reliance on judgments of the Hon’ble Supreme Court and High Courts in support of their respective contentions as to whether divorce should be granted or not. Dealing with the question of cruelty, the Hon’ble Supreme Court in A. Jayachandra v. Aneel Kaur AIR 2005 SC 534 has held : “11. The expression ‘cruelty’ has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such - 5 - cases, the cruelty will be established if the conduct itself is proved or admitted (See Sobha Rani v. Madhukar Reddi, AIR 1989 SC 121) 12. To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life’. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party”. Learned counsel for the appellant submits that the appellant is entitled to divorce irrespective of the fact as to which party is to blame - 6 - for the breakdown of the marriage, once it is established that the marriage had broken down irretrievably and there is no chance of cohabitation. He relied upon Kanchan Devi v. Promod Kumar Mittal and another AIR 1996 SC 3192 wherein their Lordships, exercising powers under Article 142 of the Constitution of India, had dissolved the marriage between the parties since they had been fighting tooth and nail in all the courts upto the Hon’ble Supreme Court and had been living apart for more than a decade with no chances of reconciliation. In Dinesh Kumar Mandal v. Mina Devi and another AIR 2005 Jharkhand 77 the High Court of Jharkhand was adjudicating an appeal filed by the husband against the judgment of the District Judge declining a decree for divorce. The husband had alleged cruelty against his wife on the ground that she was living in adultery which ground had not been proved. The marriage was annulled on the ground of irretrievable breakdown. Learned counsel sought support for grant of divorce to the appellant from the decision in Chanderkala Trivedi (Smt) v. Dr. S.P.Trivedi (1993) 4 SCC 232, wherein the wife had appealed against the grant of a decree for divorce by the High Court on the ground of cruelty under Section 13(1) (i-a) of the Act. The Hon’ble Supreme Court found that both the husband and wife belonged to a middle class family and were Ayurvedic doctors by profession. Differences had arisen between the parties after nine years of marriage. The sole point for consideration were the allegations levelled by the wife that the husband had developed intimacy with another lady doctor. The husband had also made allegations of sexual misconduct against the wife alleging her - 7 - association with the young boys. While disposing of the case, annulling the marriage the Court held:- “3. The submission of the learned counsel for the appellant that the Division Bench committed error in observing that matrimonial proceedings are quasi criminal in nature therefore it was for the wife to prove beyond all reasonable doubt that the husband was leading an adulterous life appears to have some merit in view of a decision of this Court in Narayan Ganesh Dastane v. Sucheta Narayan Dastane. But we do not propose to examine it as we are satisfied that the marriage is dead and the findings of fact cannot be set aside by this Court except that the appeal can be sent back to the Division Bench to decide it again which would mean another exercise in futility leading to tortuous litigation and continued agony of the parties. We may also mention that the findings of unbecoming behavior of the appellant appear to be shaky. We, therefore, direct that such findings in the judgment of all the courts shall stand deleted. Yet we have decided not to interfere with the order passed by the Division Bench. One of the reasons for this is that the husband on our persuasion agreed to provide a one-bedroom flat to the appellant in a locality where it can be available between Rs. 3 to 4 lakhs. He also agreed to deposit a sum of Rs. 2,00,000 for the welfare of the appellant. 4. Therefore, while dismissing this appeal we direct the husband (respondent) to purchase a flat for the appellant in Thane between Rs 3 to 4 lakhs. He shall further deposit a sum of Rs. 2,00,000 by a demand bank draft in name of the appellant with the Family Court, Bombay which shall be withdrawn by her. The house shall be purchased within six months from today and vacant possession shall be handed over to the appellant.” - 8 - In Ajay Sayajirao Desai v. Mrs. Rajashree Ajay Desai AIR 2005 Bombay 278, the High Court of Bombay following the decision of the Hon’ble Supreme Court in A. Jayachandra v. Aneel Kaur AIR 2005 SC 534 (supra), reiterated the concept of cruelty, holding:- “15. We would also like to consider the submission that the husband is entitled for decree of divorce on the ground that there is irretrievable break down of the marriage. The law is well settled that on the ground of irretrievable break down of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances the Court can use this ground for dissolving a marriage. In this case, the wife at all stages, as observed earlier, and even before us, has been ready to go back to the husband. It is husband, who has refused to take the wife back. The husband has made baseless allegations against the wife. He even went to the extent of filing the false complaints against the wife and her family members with the police at Pune and Nagpur which in our opinion was only to create evidence against the wife. The marriage, therefore, cannot be dissolved on the ground of irretrievable break down. The observations made by the Apex Court in paragraph 17 in A. Jaychandra (AIR 2005 SC 534) (supra) case would be material wherein the law laid down in Shyam Sunder’s case AIR 2004 SC 5111 has been reiterated. The relevant observations read thus: “17. Several decisions, as noted above, cited by learned counsel for the respondent to contend even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases the Court can direct dissolution of marriage on the ground that the marriage broken down irretrievably as is clear from - 9 - paragraph 9 of Shyam Sunder’s case (AIR 2004 SC 5111) (supra). The factual position in each of the other cases is also distinguishable. It has held that long absence of physical company cannot be a ground for divorce if the same was on account of husband’s conduct. In Shyam Sunder’ s case (supra) it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional case.” 15.1 It is thus clear that the reasons assigned by the husband for his wife not being ready to live with him having been found false the husband cannot be given advantage of his own wrong and granted decree of divorce on the ground of desertion and particularly when the wife is prepared to live with him unconditionally. In our opinion, the petition of the husband, on the ground of desertion also fails. Accordingly, the appeal is dismissed with costs.” However, the High Court of Allahabad in Poonam Gupta v. Ghanshyam Gupta AIR 2003 Allahabad 51 held: “14. In the light of the facts as enumerated above and after having gone through the evidence adduced by the parties and hearing the counsel at length, we are in the agreement with the finding recorded by the trial Court that the - 10 - plaintiff-husband was unable to prove the case of cruelty by his wife, as in the facts on record, the same could not be established. However, on considering the totality of the circumstances and taking a pragmatic and practical approach that since there are allegations and counter allegations of misbehavior, physical and mental torture by both the parties, we find that it would not be actually possible for the two to live together. Besides this there is also the fact that during the pendency of the petition for divorce, the husband has remarried and has two children. Coupled with this, due to the criminal complaint filed by the wife, the husband remained in jail for sixty three days and also his father and brother were jailed for twenty to twenty five days. Taking all these circumstances into consideration, we are of the opinion that the two parties cannot now live together as husband and wife. 15. While dealing with matrimonial cases, the Court has to strike a balance between the strict compliance of law and the situation emerging from the facts of the particular case. It is a totally different situation where the Court has to judge the rights of the parties with regard to certain property. But when the Court is to deal with human relationships, their lives and also their future living, it is obligatory on the part of the Court to consider whether the two persons whose matter is put before it, would in any way be benefited by the strict compliance of legal principles. We are duty bound to consider the welfare of the parties and come out with a workable solution. Under the scheme of the Act, dissolution of a marriage is normally the last option which the Court should exercise. But when a situation comes up, like the present one, where living together for the two of them is no longer possible or practical, directing the parties to live together as husband and wife would be totally meaningless. The purpose of continuance of such a marriage only for name-sake would - 11 - be futile. In such circumstances, for all practical purposes, the marriage has become dead, both emotionally and practically, with no chances of revival. In the present case, even though the case of cruelty may not have been proved but as the facts emerging from the record clearly indicate that the living of the two as husband and wife would not only be difficult, but impossible, we are left with no alternative but to grant a decree of divorce.” Learned counsel appearing for the respondent has relied upon a Division Bench judgment of this Court in Anjana Kumari Vs. Vipin Kumar 2002 (1) Hindu Law Reporter 689 holding that where the husband was making false allegations against the wife in order to get rid of her, the wife is bound to protect herself and any complaint which may be made by her cannot be treated as one amounting to mental cruelty to the husband. He also referred to another judgment of this Court in Smt. Madhu Sood vs. Anil Kumar Sood 1999 (2) CLJ (Himachal Pradesh) 246. This was a case dealing with a petition under Section 13 (1), 13 –A filed by the husband. The Court, after considering the material on the record, considered the concept of cruelty and the law on the subject in detail and held that where the wife was prepared to join the company of the husband, but the husband was not ready to keep her, it would be a case of non-cooperation and misunderstanding and it cannot be said that the marriage is dead and should be dissolved. He also cites Sunil Kumar vs. Smt. Reshmi 2007 (1) Civil Court Cases (Punjab & Haryana) 185 holding that irretrievable breaking down of marriage cannot be said to be a ground for divorce. A number of other judgments have been cited but in - 12 - view of the law which has been considered the proposition of grant of divorce on grounds of cruelty is now fairly well settled. A few other judgments need to be noticed. In Hemavati vs. Puran Chand 2002 (2) Shim. L.C. 440, this Court while disposing of an appeal under the Hindu Marriage Act held that false, scandalous and malicious allegations, leveled in the written statement amount to cruelty by the husband who made unsubstantiated allegations against the wife willing to live with him. It was held:- “37. In the present case, if the husband having made reckless and unsubstantiated allegation against wife, still wants to live with the wife then it cannot but be with the motive to make the life of the wife intolerable and full of mental suffering. It is apparent that the marriage between the parties has broken down irretrievably without any hope of they living together again. Situation is such the wife cannot be asked to continue to live with the husband and more. 39. To conclude, we are of the view that it is not possible for the parties to live together in harmony and peace. The marriage has reached the stage of irretrievable breakdown and the parties cannot be expected to live together.” In Romesh Chander vs. Savitri AIR 1995 SC 851 the Hon’ble Supreme Court was dealing with a situation where the marriage had become dead emotionally and practically. Exercising powers under Article 142 of the Constitution of India, the Court dissolved the marriage considering the fact that the parties had been living apart and it was not possible for them to live together. Further, the son born from the marriage had been gainfully employed. To similar effect is the judgment of the Hon’ble Supreme Court in Rishikesh Sharma vs. Saroj Sharma 2006 - 13 - (3) Shim. L.C 389. This court, while dealing with a similar situation in Bharti Sharma vs. Surinder Kumar Sharma 2003 (2) Shim. L.C 255 found on facts that the parties had been living separately for the last 15 years. The wife was willing to reside with the husband but the cause of dispute between them was not settled. It was held:- “29. In so far as the case in hand is concerned, it is true that the parties are now living separately for the last about 15 years. The appellant, however, has specifically stated in her statement that she was still willing to reside with the respondent but the cause of dispute between them is the house. This may though appear not to be a very sincere offer the fact, however, remains that the appellant is residing in her parents house not without a reasonable cause but for the sufficient reason that she was deprived of the ownership of the house which was purchased in her name at Jagadhari. The respondent instead of settling the dispute regarding the ownership of house by amicable means with his wife has created a situation affording reasonable cause to the appellant not to live with him but to live at the house of her father. Therefore, the long separation between the parties being attributable to the act and conduct of the respondent, he cannot be permitted to take advantage of the plea of irretrievability of the marriage.” Following the ratio in the case of Savitri Pandey vs. Prem Chand 2002 (2) SCC 73 holding that a dead marriage should not be kept alive a decree of divorce was granted. It is in the totality of the law as laid down in the judgments above that the case of the parties has to be considered on the evidence on the record. It would be noticed, that although the facts in two cases are not similar, certain common points can be culled out and the ratio of the judgments to the effect that (a) there is no - 14 - hope of reviving the marriage or keeping the marriage alive, (b) parties have been living separately for a considerable period of time with no hope of conciliation (c) consideration of the fact that now the son of the parties is also employed married and settled have to be kept in mind before a decision is taken. It may be emotionally appealing to keep the marriage alive yet, sentiments have to yield to the harsh realities of life. It is in