:l':-f.:^l-"S-!!'^i-t^.^l'y».WsS»- HI6H COURT OF CHHATTIS6ARH AT BILASPUR FIRST APPEAL No. 57 of 2007 Smt. Saroj Agrawal Vs. Sanil Agrawal Post for pronouncement of judgment/orders on3(/08/2009. Sd/- N.K.Agarwal Judge HIGH COURT OF CHHATTtSeARH. BILASPUR FIRST APPEAL N0.57 OF 2007 APPELLANT/ PLAINTIFF Smt. Saroj Agrawal, W/o Shri Sanil Agrawal, Aged about 33 years, R/o Behind FCI Godown, Manendragarh, District Korea, Chhattisgar-h. Versus RESPONDENT/ DEFEN&ANT Shri Sanil Agrowal, S/o Shr-i Sovind Prasad Agrawal, aged about 46 years, R/o Village Patan, Thakur Colony, Near Ara Machine, Jabalpur (M.P.) FIRST APPEAL UNbER SECTCON 28 OF THE HIN&U MARRIA6E ACT. 1955 Present: Shri Parag Kotecha, Advocate for the appellant. Shri Dashrath Prajapati, Advocate for Respondent. 53: HON'BLE SHRI JUSTICE N.K. AGARWAL OR D ER (ff| -08-2009) The instant appeal is directed against the judgment and decree dated 29-06-2007 passed by First Additional District Judge, Manendragarh, District Korea in Civil Suit No.27-A/2006 whereby and whereunder the petition for divorce has been dismissed by the tr-ial Court. . •„.- 2. Brief facts of the case according to appellant are that the appellant and the respondent were marTi'ed oh 30-05-1994 in accordance with Hindu traditions and customs and since then they were living in the matrimonial home and performing their duties. They have two issues namely son Sarang Agrowal, aged about 11 years and daughter- Ku. Khushi, aged about 3 years and six months. After one year of the marn'age, the appellant/wife came to know that the respondent is in the habit of consuming liquor and gamblin9 and for that he sold salable articles of the shop, due to that shop was closed. He started beating appellant and quar-reling with other family members so they separated him and respondent star-ted livingwith the appellant in Thakur Colony, Patan, Jabolpur. He continued his habit of drinking, gambling and torturing the appellant mentally as well as physically. The respondent let out his kirana shop on a monthly rent of Rs.3000/- and also residential house on a monthly rent of Rs.2000/- and converted the house situated at Thakur Colony, as gaming house where he started gambling along with his friends and consuming liquor in front of appellant which raised a sense of insecurity in the mind of the appellant. Upon her objecting, the appellant was driven her out of her matrimonial home, despite the fact that she was pregnant. A-t that time, no option was left but to go to her parental home and since then she is residing with her parents, where second child born. The respondent did not come to see the child nor send a single rupee for her maintenance. Looking to the past and subsequent conduct of the respondent, matrimonial life had led to grave mental cruelty to the appellant wife and after having felt re-union impossible with the appellant, has preferred the petition under Section 13(l)(ia) of the Hindu Mar'r'iage'^ct, 1955 (hereinafter referred to as 'the Act'). 3. On 22-12-2006, the respondent appears in the case and filed his written statement. On 08-02-2007, the Trial Court granted Rs.250/- per month as interim maintenance under Section 24 of the Act. Then issues were framed. The trial Court proceeded ex-parte against the respondent on 14-06-2007 due to his non-appearance and thereafter, the appelldnt examined three witnesses. The trial Court 'dismissed the petition on the ground that specific dates with regard to ill- treatment instances were neither pleaded nor proved, hence this appeal. 4. Shri Parag Kotecha, learned counsel for the appellant would submit that the appellant examined three witnesses; their stateinent stands unrebutted; the factum of mental cruelty stands proved by a bare perusal of the petition and evidence adduced. Despite learned trial Court merely on the basis bf the fact that specific dates were not given, dismissed the divorce petition, and, therefore, the finding arrived at by the Trial Court is erroneous and deserves to be set aside and a decree of divorce be passed. 5. Per contra, Shri Dashrath Prajapati, learned counsel appearing for the respondent supported the decree and submitted that the judgment and decree passed by the Trial Court is well reasoned, based on settled principles of law and deserves to be upheld. 6. I have heard the learned counsel for the parties and perused the record and order impugned. 7. It must not however be lost sighf-of, that the existence of cruelty depends not on the magnitude but rather on the consequences of matrimonial offence of cruelty actual or apprehended. Personalities of the parties is an importanj^ element for the decision as to whether the status between the two spouses had been cruel, Cruelty as envisaged under the Act is not restricted to acts of physical violence and may extend to behaviour- which may cause pain and injury to the mind as well as to render the continuance in matrimonial home an ordeal where it becomes impossible for them to live together without mental agony, torture or distress. The expression cruelty" as envisaged under Section 13 of the Act clearly admits in its ambit and scope ^%^ such acts which may even cause mental agony to aggrieved party. Cruelty may result where the complaining spouse establishes his/her being treated with cruelty whether physical, mental, social or otherwise but the acts complained of must be more serious than the ordinary wear and tear of marriage falling in the category of conscious acts cruel in nature as that is the underlying requirement of the provision. 8. The intention to be cruel is not an essential element of cruelty as envisaged under Section 13(l)(ia) of the Act. If bitter wafers are flowing it is not necessary to enquire from which source they spring. The intention or motive behind fhe cruelty has lost significance in the changed society and the social atmosphere of the present day. It is sufficient that if the cruelty is of the type which indicates that the relations between the spouses had deterforated to such an extent due to the conduct of one or the other that it has become impossible for them to live together without mental agony. In marital matters, the feelings and attitudes of minds are material. 9. Test of cruelty to be inferred by any conduct of spouse in its ordinary and natural meaning. Cruelty is not defined specifically. It is Courts responsibility to interpret analysis and define it. The allegations of ill-treatment, abusing indulgence in undesired activities, neglect of matn'monial obligqtions,and driving out the wife out of her matrimonial home by her husband is mental, cruelty. Mental cruelty causes grievous injury and creates reasonable apprehension of unsafe. 10. In the instant case, a bare perusal of the statement of appellant, her father and her neighbour which standsunrebutted would reveal that the respondent was in the habit of gambling, dn'nking, beating and ill-treating the appellant and no wife would tolerate such undesirable acts that too along with friends in the ^ matrimonial home in front of wife. In such cir'cumstances, feeling of insecurity is quite probable." 11. In view of the obove, the judgment of Supreme Court relief upon by the learned counselfor the respondent in cases of Samar ffhosh vs. Jaya ffhosh; reported in (2007) 4 SCC 511 and A. J'ayachandra vs. Aneel Kaur: reported in (2005) 2 SCC 22 are of no help to the respondenf rather they supports the stand of the appellant. 12. Therefore, I have no hesitation to hold that the judgment and decree passed by the trial Court deserves to be and is hereby set aside. 13. In the result, appeal is allowed. Marriage solemnized between The appellant and respondent stands dissolved. 14. No order as to costs. -___ Sd/- N.K.AgamaI Judge ^) Kvr