IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO(HMA) No.122 of 2002. Date of decision: 13.5.2008. Bimla Devi …Appellant. Versus Desh Raj …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: M/s.Bhuvnesh Sharma and Ramakant Sharma, Advocates, appellant in person. For the Respondent: Mr.Sunil Awasthi, Advocate. Dev Darshan Sud,J. This is the wife’s appeal against the judgment and decree of the learned District Judge, Hamirpur, granting a decree of divorce in favour of the respondent-husband. Before considering the facts of the case, I note with consternation that the appellant insisted on appearing in person after her learned counsel had completed his submissions. This is a rather unusual practice which I would not have permitted but for the fact that appellant became emotionally charged and repeatedly 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 cast aspersion on the professional capabilities of her counsel. She consumed the time of this Court both before and after the lunch session repeating over and over again that she had been beaten up by her husband who is a drunkard, was responsible for stopping their children from meeting her and that she wants to stay with her husband and does not want her marriage to be dissolved by a decree of divorce. It is undisputed before me that the parties to this appeal were married on 10.5.1978 according to Hindu rites and that they have two children who are now past their mid-twenties, the daughter is already married. The husband approached the Court under the Hindu Marriage Act, 1955, (herein after referred to as the `Act’) praying for decree of dissolution of marriage under Section 13(1)(i) of the Act. The allegations levelled by him were that from the day when the parties were married, the appellant did not treat him with love and affection; she used to leave the house and was often seen with strangers. Initially, the husband-respondent ignored all these acts and tried to persuade the appellant to stay with him, ignored her wayward attitude, but did not succeed in his efforts. Further allegations made by him are that the appellant is in the habit of filing false complaints against him and anyone from the village who supports him. She was usually seen in the Police Station, Tehsil Office and the Court Complex for 3 initiating litigation, complaints etc. The respondent-husband also pleaded that the appellant had no attachment with their children. When the marriage of their daughter was to be solemnized, she went to the Court and obtained an injunction against the respondent from solemnizing the marriage and also lodged a complaint with the Police Station, Badsar, alleging that the marriage was being solemnized against the wishes of the daughter, it was illegal as the daughter was minor etc. This injunction was obtained by her two days before the marriage ceremonies were fixed. It was with great difficulty that the respondent-husband persuaded the Court to vacate these orders. The respondent-husband pleads that he has had no sexual relations with the appellant for the past six years (as on the date of filing the petition) as she had deliberately withdrawn from his company. He submits that the conduct and behaviour of the appellant is of such a nature that people in the village always feel threatened by her. In reply, the appellant accused the respondent-husband of being a drunkard and a person having illicit sexual relations with women of bad character both before and after marriage and whenever she objected to this attitude of the respondent- husband, he used to beat her up and throw her out of the matrimonial house. She further pleads that he sold off his land in order to deprive her of 4 maintenance and necessities of life and to drive her to a situation of penury and desperation where she would have no option but to submit to him and his belligerent behaviour, physical assaults and illegal demands. She accused her husband of filing the petition for divorce in collusion with the other villagers. It was in these circumstances that she had to approach the police for protection. She admits that an injunction was obtained by her against the respondent-husband restraining him from marrying their daughter since she was a minor and that there is no sexual co-habitation between her and the respondent- husband as he is in the habit of enjoying luxurious life with other women. Learned trial Court, on an appreciation of the oral and documentary evidence held two vital issues, namely; (1) Whether the respondent has deserted the petitioner ? OPP., (2) Whether the respondent has treated the petitioner with cruelty by filing a false complaint against him? OPP, in favour of the husband. On the question of allegation of adultery levelled by the husband, the Court held that they were not established. I have heard learned counsel for the parties and have gone through the record of the case. The pleadings and the evidence on record show that there is no love lost between the parties and their attitude towards each other is such that 5 they would go to any extent and more especially the wife to demean each other. The evidence as considered by the learned trial Court shows that the wife has behaved with belligerence and adopted a course of action which no married Hindu lady would adopt. Learned counsel appearing for the appellant as also the appellant in person have urged that the judgment of the learned District Judge is not in accordance with law and the pleadings as also the evidence on the record do not satisfy the necessary ingredients of Section 13 of the Act. He submits that the evidence on the record shows and concussively establishes that despite cruelty practiced by the husband on the appellant she has been a dutiful Hindu wife and was and is still prepared to live with him. The learned District Judge, while adjudicating on the acts of cruelty as alleged by the husband, relied upon the evidence of PW-1 (husband), PW-2 Ramesh Kumar, who was also the Vice President of Panchayat Jhanjhari at the time when the marriage of the daughter of the parties was solemnized, PW-3 Smt.Satya Devi, Secretary, Mahila Mandal, Nara and PW- 4 Shri Virender. The appellant appeared as RW-1 and produced RW-2 Shri Karam Singh and RW-3 Shri Mangat Ram in support of her case. The husband has reiterated the allegations made by him and has proved on record Exs.PA, PB and PC, which are interalia newspaper reports about the 6 conduct of the appellant and the resolutions of the Gram Panchayat declaring the appellant to be a person unfit to live normally in society, whose very presence causes tension in the entire village because of her acts and behaviour and a person who should be kept in Nari Niketan, Mandi for her own safety as also the safety of the villagers. Ex.PA is the newspaper cutting of 16th December, 1998, reporting therein that the appellant had obtained an injunction order against the marriage of her own daughter, which was later-on got vacated by the husband with the help of the villagers. The report is as under:- “Beti Ki Shadi Mein Vighan Dalne Ke Paryas Mein Maa Girftar: … … … …Yeh bhi pata chala hai ki shadi ko rukwane ke liye Bimla Devi ne nayayalaya tak ko sharan lekar sthagan adesh prapat kar liya tha, lekin yeh mansha bhi puri na ho saki, kyonki uske pati Deshraj the sthagan adesh ko rad karbakar shadi ka pura prabandh kiya. Bimla Devin e bat nab ante dekh mahoul ko gadbadane ki koshish ki. Barat ke nirdharit samyanusar pahunchane par usne shadi me utpat macha kar har kisi ko bura bhala kehna va dhamkiyan dena shuru kar di. Barat ke samne sthiti ko sharamshar hote dekh gaunv-vasiyonne policethana Badsar-Mehre ko turant suchana de di, jis par police tatkal moke par pahunchi. Thand Prabhari Nandan Kant Sharma ne bataya ki Bimla 7 Devi ko girftar karke havalat bhej diya gaya. Iske bad shadi shantipurvak mahoul mein sampan ho gai”. Second part of Ex.PA is again a copy of the newspaper report saying that the appellant had been arrested for creating nuisance at the wedding of her daughter. Ex.PB is a complaint filed by the husband before the District Magistrate alleging all these acts against his wife and Ex.PW/A is a resolution of the Mahila Mandal dated 12.12.1998 signed by more than 100 people testifying the fact that the appellant is an unsocial element who will go to any extent to disturb the peace and inter alia recommending that she be kept in a Nari Niketan for her own welfare as also that of the society at large. PW-2 has also testified that at the time of the marriage of the daughter of the parties was being performed, the appellant pelted stones at the marriage party and created disturbance / nuisance etc. The evidence of the husband has remained un-rebutted, although the appellant has made a feeble attempt to dislodge the case pleaded by him. On the allegation that the husband was trying to deprive her of all necessities etc., he has stated in evidence that he had sold immovable property for the purposes of financing the education of his son who was graduating for his B.Sc.Degree. For this purpose he had raised a loan from the State Bank of 8 Patiala. Again, this portion of the evidence has remained unchallenged. RW-2 Shri Karam Singh has stated nothing to dislodge the testimony of the petitioner-husband. Similar is the position with RW-3 Mangat Ram who has not stated anything about the conduct of the appellant or the respondent. It also stands established from the record that the appellant has denied sexual access to the husband without reasonable cause. There is nothing on the record to establish the allegation levelled by the appellant against the husband that he was associating with a women of bad character or for that matter any other women and was having sexual relations with any of them either before or after their marriage. The parties also admit that as there has been no sexual relations between them for more than six years etc., it is only on the point as to who is at fault that the parties are at issue. The justification by the appellant of this withdrawal on the ground that the husband was living a luxurious life with other women is not established from the record. The mere assertion of the appellant cannot be accepted. Section 13(1)(i-a) of the Act provides:- “13. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented 9 by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) … … … … … … … … … … (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or …………………” In Samar Ghosh vs. Jaya Ghosh, (2007)4 SCC 511, lays down the principles applicable, the Supreme Court holds: “98.On a proper analysis and scrutiny of the judgments of the Supreme Court and other courts, there cannot be any comprehensive definition of the concept of “mental cruelty” within which all kinds of cases of mental cruelty can be covered. No court should even attempt to give a comprehensive definition of mental cruelty. 99. The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in 10 another case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and the value system. 100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc.etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never by any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors into consideration. 11 101. No uniform standard can ever be laid down for guidance, yet it is deemed appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: Further the Court laid down certain acts which would constitute mental cruelty which are being reproduced as under: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to 12 cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health 13 or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealously, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization 14 without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty“. 15 Applying the principle of law as laid down in Samar Ghosh’s case, I have no doubt in my mind that this appeal must be rejected as the acts of the appellant individually or in totality constitute cruelty. There can be no other conclusion which can be arrived at from the facts established on the record. This is not a case where the conduct of the appellant-wife can be described as stray incidents but consistent conduct in subjecting the husband to acts of cruelty. The respondent cannot be compelled to live with her, more especially when it is considered that not only the husband but also the villagers feel threatened by her acts and conduct. This appeal is accordingly dismissed. There shall be no order as to costs. It would be open to the appellant to establish her right of maintenance, if any, independently in accordance with law. May 13, 2008. (Dev Darshan Sud) (aks) Judge.