HIGH COURT OF UTTARAKHAND AT NAINTIAL (Court’s order whether the case is or not approved for reporting) Description of the case S. A. No. 1327 of 2001 Shakti Kumar Vs. Smt. Vinay Devi W/o Shakti Kumar Approved for reporting Date of Decision: 15-02-2008. Initial of Judge …………………… ,,,,,,,,,,,,,,,,,,,,,,,, ………………… HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 1327 of 2001 Shakti Kumar son of Sri Natthumal r/o House No. 243 Chau Mandi, Roorkee, Tehsil Roorkee, District Haridwar. …….. Appellant Versus Smt. Vinay Devi Wife of Shakti Kumar d/o Sri dev Kumar Verma r/o village Nagal (Sotti) Tehsil Nazibabad, District Bijnor. ……….. Respondent Sri N.C. Gupta Advocate for the appellant. Sri D.K. Sharma, Advocate for the respondent. Dated: February 15, 2008 Hon’ble Rajesh Tandon, J. Heard Sri N.C. Gupta counsel for the appellant and Sri D.K. Sharma counsel for the respondent. Present second appeal has been directed against the judgment and decree dated 14.5.2001 passed by the Additional District Judge, Haridwar confirming the decree dated 26.8.1997 passed by the Civil Judge (S.D.) Roorkee. Briefly stated a suit has been filed by the appellant in the Court of Civil Judge (S.D.) Roorkee under section 13 of the Hindu Marriage Act for a decree of divorce against Smt. Vinay Devi. According to the petitioner-appellant he was married with Smt. Vinay Devi in the year 1972 according to the Hindu religious rites. Appellant was employed in Irrigation Department at Kalagarh. He took his wife to Kalagarh. His parents were also with him at Kalagarh. The petitioner- appellant has alleged that the respondent wife has treated the appellant with cruelty. She also treated the parents of the petitioner with cruelty due to which they died in early age. The respondent wife also deserted the husband from time to time and she used to leave her in-laws house without the permission of her husband. The respondent wife in her written statement has denied the allegations of cruelty against her and has submitted that she never left her house without the permission of the petitioner husband. The parents of the petitioner died due to old age and not due to the cruel behaviour of the respondent. Petitioner husband demanded dowry from the parents of the wife and when he could not extract money from the parents of the respondent, he treated the respondent with cruelty. The petitioner has kept one Smt. Uma alias Guddi as his second wife and a child was also born from their wedlock. On the basis of pleadings of the parties following issues were framed by the trial Court: 1. Whether the petitioner has danger to his life in living with the respondent as the respondent was treating him with cruelty? If so, the petitioner is entitled to get a decree of divorce? 2. To what relief if any, is the petitioner entitled? Appellant has examined P.W.1 Shakti Kumar, P.W.2 Sudhir Kumar and P.W. 3 Ram Prakash while the respondent has examined herself as D.W.1, Sri Raghuvir Singh as P.,W.2 and Sri Adesh Kumar as D.W. 3. On the basis of evidence of the parties the trial Court has held that the petitioner-appellant has failed to prove that the respondent wife has treated him with cruelty and as such dismissed the suit of the appellant for divorce. Feeling aggrieved the petitioner appellant has filed and appeal before the lower appellate Court which has also dismissed by the Additional District Judge, Roorkee vide impugned judgment and decree dated 14-5-2001, against which the present second appeal has been preferred by the petitioner- appellant. The second appeal was admitted on the following substantial questions of law: 1. Whether the court below were bound to frame the issue in the averment of wife of appellant in her written statement regarding all allegations of illicit relations of husband-plaintiff with some other woman namely Guddi alias Uma and further allegations that a child was also born in consequences of the aforesaid illicit relations if it is show that is the effect? 2. Whether the such unfounded all allegations of illicit relation against husband-plaintiff appellant with another woman made by the wife-respondent- defendant in her written statement as well as in her statement on oath amounts to terms “mental cruelty” and whether it may be a ground for decree of divorce to the husband. 3. Whether the Court below should consider the subsequent evidence during the pendency of the case in considering the period of separation at the time of passing the final decree rejecting the or allowing the divorce, if it is so what is the effect? 4. Whether the period of desertion would be compound including the period of separation during the pendency of the cast till deciding its finally, if is so what is the effect? 5. Whether the casual meet would be treated at intervals in computing the period of desertion if it is not what is the effect? All the above substantial questions of law are interconnected; hence they are being taken up together for discussion. Counsel for the appellant has submitted that the respondent has treated the appellant with mental cruelty and her cruel behaviour towards the parents of the petitioner resulted in their death in the early age. The respondent has also alleged adultery against the petitioner in her written statement but neither the adultery has been proved nor the party with whom the respondent had alleged illegal relationship has been made party to the proceedings. False allegation of adultery against the husband or the wife is mental cruelty and is a ground for divorce. Petition for divorce can be filed under section 13 of the Hindu Marriage Act on the following grounds: 13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of the 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- (i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or Explanation.- 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 willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly. A perusal of the written statement shows that the respondent has come with definite allegation of adultery against the respondent but she was not complied with Rule-13 of the Hindu Marriage and Divorce Rules 1956. Rule 13 of the Hindu Marriage and Divorce Rules reads as under: 13. Intervener’s petitions- unless the Court for good cause shown otherwise directs, where the written statement of the respondent alleges adultery by the petitioner with a named man or woman a certified copy of such statement or such material portion thereof containing such allegations shall be served on such man or woman accompanied by a notice that such person is entitled within the time therein specified to apply for leave to intervene in the case. Thus as per above provisions it was incumbent upon the respondent to send a notice along with the certified copy of the Written statement containing allegation of adultery to Smt. Uma alias Guddi to apply for leave to intervene in the case. However, this point for the first time has been raised before this Court in the second appeal and it has not been raised either in the trial Court of before the first appellate Court. Adultery against a spouse has been defined by the Apex Court in various cases. In the case A. Jayachandra vs. Aneel Kaur (2005) 2 SCC 22, the Apex Court while defining ‘Cruelty’ has observed as under: “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 by 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 amount to cruelty in the matrimonial law.” In the case Mayadevi vs. Jagdish Prasad, (2007) 3 Supreme Court Cases 136, the Apex Court has held as under: “The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. 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 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 cases, the cruelty will be established if the conduct itself is proved or admitted. In the case of Naveen Kohli v. Neelu Kohli, 2006 AIR SCW 1550 has observed as under: 40. “The concept of cruelty in matrimonial matters was aptly discussed in the English case in Bertram vs. Bertram (1944) 59, 60 per Scott, L.J. observed. “Very slight fresh evidence is needed to show a resumption of cruelty, for cruelty of character is bound to show itself in conduct and behaviour. Day in and day out, night in the night our.” In Cooper vs. Cooper (1950) WN 200 (HL) it was observed as under: “It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival.” 41. Lord Denning, L.J. in Kaslefsky vs. Kaslefsky (1950) 2 All ER 398, 403 observed as under: “In the door of cruelty were opened too wide, we should soon find ourselves granting divroce for incompatibility of temperament. This is an easy path to tread especially in underfended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperilled.” 42. The High Court of Australia in Wright vs. Wright (1948) 77 CLR 191, 210, has also taken the view that “ the civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery.” 44. Lord Reid in Goillins vs. Gollins (1964 AC 644: (1963) 2 All ER 966): “No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all case except the requirement that the party seeking relief must show actual or probable injury to life, limb or health.” Mere allegation of adultery against a spouse, without any convincing and cogent evidence amounts to cruelty and it can very well be a ground for divorce. But in the present case there is sufficient evidence adduced by the respondent to prove that the appellant had conducted second marriage and he is living in adultery with another women namely Smt. Guddi alais Uma and a issue is also born from their wedlock. In her statement D.W.1 Smt. Vinay has stated that one Guddi is residing with the petitioner as his wife and one male child is also born to her. His name is Atul Shakti and he is studying in a school at Chau Mandi. D.W.2 Raghuvir Singh has also supported the statement of respondent Smt. Vinay and has stated in his statement that one Guddi is living in the house of Shakti as his wife and Guddi has also a child. D.W.3 Adesh Kumar has also stated in his statement that he saw one Smt. Guddi in the house of petitioner Shakti Kumar, who are living as husband and wife and one child is also borne from their wedlock. Thus there is sufficient evidence to prove that the appellant-husband is living in adultery with Smt. Guddi alais Uma. Thus the respondent has proved by cogent and sufficient evidence that the petitioner husband was himself living in adultery and thus the respondent wife has reason to live separately from her husband and divorce cannot be granted on the basis of desertion. Both the Courts below have given concurrent findings on all the issues. I find no reasons to interfere in the findings arrived at by the Courts below in the second appeal. Thus all the substantial questions of law are decided accordingly against the appellant. Consequently, the appeal is dismissed. No order as to costs. Dated: February 15, 2008 Rajesh Tandon, J. *Dhyani