*THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE K.S. APPA RAO F.C.A.No. 131 of 2005 % 29.4.2011 Between: Smt. Mandavelli Hema ....APPELLANT AND Sri Mandavelli Bhimasankara Prasad .....RESPONDENTS ! COUNSEL FOR PETITIONER: SMT. N(P) ANJANA DEVI ^ COUNSEL FOR RESPONDENT: B. KRISHNA KUMAR < Gist: > Head Note: ? CITATIONS: [1] 2002(2) HLR 513 (SC) 2 (2002) 2 SCC 73 3AIR 2003 SC 2462 4AIR 2004 All. 1 5AIR 2011 DELHI, 5 THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE K.S. APPA RAO F.C.A.NO. 131 of 2005 JUDGMENT: (Per K.S. Appa Rao, J) This F.C.A. is directed against the judgment and decree of the Judge, Family Court, Visakhapatnam dated 21.6.2005 whereby, the petition of the appellant filed under Section 13(1)(ia) of Hindu Marriage Act, 1955 was dismissed. For the sake of convenience, the parties shall be referred to as arrayed before the Family Court. The petitioner-wife filed O.P. No. 592 of 2001 against the respondent-husband under Section 13(1)(ia) of the Hindu Marriage Act, for dissolution of their marriage dated 1.7.1999 by granting a decree of divorce on the ground of cruelty and for refund of marriage expenses of Rs. 1,50,000/- and gold ornaments of two tolas and silver 150 tolas or to pay the costs of the ornaments of Rs. 25,000/- and for other reliefs. The case of the petitioner, as stated by her in the affidavit filed in support of the O.P. is that she is a deaf and dumb girl by birth and studied in Omkar Lions School for deaf and dumb at Lawsons Bay Colony, Visakhapatnam where her mother was also working as Head Mistress of the said school. That she learnt speech therapy, so that she can understand the lip movement of the others. The brother of the petitioner is also deaf and dumb by birth. Her father was thinking of her future, as she is deaf and dumb girl, proposed for illatom son-in- law. The respondent and his elders agreed for the proposal and marriage was solemnized on 1.7.1999 at Tondavaram, Ambajipeta, East Godavari District. The elders of the respondent made them believe that the respondent is 24 years and that he did graduation. Her father has agreed for the said marriage proposal with the respondent on the fond hope that a graduate will get a job at Visakhapatnam. At the time of marriage, her father gave cash of Rs.1,25,000/-, one gold ring, chain weighing about 2 tolas and 150 tolas of silver tumbler and plate. After solemnization of the marriage, the respondent came to Visakhapatnam to stay at petitioner’s house as illatom son-in-law and lead marital life. Six months after the marriage, the real character of the respondent came to light as he used to come to the house at late nights in a drunken state and used to beat the petitioner indiscriminately. The respondent has bad habits of gambling and womanizing and harassing her mentally and physically, but she never informed her parents about the character of the respondent. When her father tried employment for the respondent, it came to light that respondent even did not pass X Class and that he was aged 34 years at the time of marriage i.e. 14 years elder to her and his conduct before marriage was very bad, involved in 2 or 3 theft cases at Draksharamam, Rampachodavaram, East Godavari District. Her father felt bad and represented that he was cheated by relatives for settling the said marriage. The respondent used to collect huge amounts from her father on the pretext of investment to do business, but used to spend all monies for his luxuries and bad habits. That the respondent in a drunken state, drove motor cycle and met with an accident on 28.3.2001 and hospitalized. She spent huge amounts for hospitalization. The harassment has become more after the accident while he took rest at home. The respondent has no love and affection towards her, as she is deaf and dumb and attempted to kill her several times by pouring kerosene and caused leakage of gas and to her luck, she escaped from all attempts. Having vexed with unbearable harassment, she has informed the same to her parents and on knowing the same, the respondent left the house on 12.8.2001. In fact, the respondent after left the house tried to abduct her twice in order to put her life to an end. The respondent-husband filed his counter inter-alia stating that his father is a retired teacher. He has three sons and he is the third son of them. His elder brothers got married. He studied upto X Class and he is an un-employee and 34 years of age as on the date of marriage. While the parents were in search of a bride groom for their daughter, after making elaborate enquiries with others approached his parents for the alliance on 13.6.1999. Accordingly, on 14.6.1999, his parents went to Nedunuru village which is adjacent to Kotipalli Revu. After seeing the petitioner, he agreed to marry her. The petitioner’s parents promised to take care of him in all aspects and also told his father that he will take care of respondent. Immediately, on the following day, i.e. 15.6.1999 betrothal took place at Amalapuram followed by the marriage on 1.7.1999 at Tondavaram village as per Hindu rites and customs. On 2.7.1999 nuptial ceremony took place and on 12.7.1999 a reception was held at Hotel Daspalla and from that date onwards the petitioner and himself were living happily. It is further alleged that the parents of the petitioner failed to provide any employment as promised at the time of marriage and they had no interest to see him working. The petitioner’s mother insisted not to go for any job on one pretext or other, thereby he was under total control of his mother-in-law and become a hen-pecked husband. The petitioner’s parents contacted Swarnadhara Edible Oil and agreed to take a dealership in the name of the petitioner. For that purpose, the petitioner’s father took a demand draft for Rs. 50,000/- on 17.10.2000 and asked him to go to Tondavaram village, where the petitioner’s father was residing and directed the respondent to approach Swarnadhara Edible Oil at Rajahmundry to hand over the Demand Draft and to obtain necessary documents. Accordingly, himself, the petitioner and her father went to Rajahmundry and obtained dealership. Unfortunately, the said Swarnadhara Edible Oil went into doldrums and finally the firm was wound up. Thereby, on behalf of his wife i.e the petitioner, he gave a police complaint to the III Town Police, at Rajahmundry on 28.1.2001 and a criminal case was filed against the said firm. Subsequently, himself and petitioner were living happily at the residence of his mother-in-law at Visakhapatnam, he made several attempts to get a job, but mother-in- law did not agree for the same. Finally, he was given consent by his mother-in-law to do a job in M/s Veekay Trade Promoters, at Visakhapatnam as Marketing Executive for a salary of Rs. 2,500/- per month. On 28.3.2001, he met with an accident and was immediately admitted in Prema hospital by his mother-in-law and on 29.3.2001, a major operation was performed and was advised three months bed rest and physiotherapy for two months. After the surgery, as advised by his mother-in-law, he went to his parents’ house to take rest on 12.8.2001. After couple of days, he telephoned to his mother-in-law that he is coming to Visakhapatnam, but his mother-in-law advised him to take rest for some more days. Again in the month of September, 2001, he went to his in-laws house to join his wife, then his mother-in-law again asked him to go to his native place and has given him send off at bus stand. He was at his native place upto December, 2001 and returned to Visakhapatnam on 10.12.2001 and on that day he was not permitted to step into the house of her mother-in-law. Thereafter, he joined the employment at Visakhapatnam and stayed there from 15.12.2001 to 6.1.2002. At that time, the petitioner got served the Court notice on him. He further alleged that there was no dispute or difference of opinion between him and the petitioner. Even today he is ready and willing to join the petitioner and lead conjugal life and the petition is filed with an evil idea of his mother-in-law as she apprehends that if her daughter continues marital life, the property of Rs. 50.00 lakhs may go to her son-in-law and to save the property, she ruined the marital life of the young couple and that he always treated the petitioner with love and affection and that there are no bona fides on the part of the petitioner in filing the petition. The petitioner examined P.Ws. 1 to 3, including herself as P.W.1, and P.W.3, one of the friends of the respondent and marked Exs. A1 and A2, while the respondent examined himself as R.W. 1 and his uncle as R.W.2. The Family Court, upon appreciation of the evidence in the light of the contentions raised by the rival parties, came to the conclusion that the petitioner failed to prove that the respondent treated her with cruelty, entitling her to seek dissolution of her marriage with the respondent and grant of divorce, and holding so, by reason of the order under appeal, dismissed the O.P. filed by the petitioner for dissolution of her marriage with the respondent and for grant of divorce. The learned counsel for the appellant submitted that the Family Court failed to properly appreciate the evidence of P.W.1 and the corroborative evidence of P.Ws.2 and 3 who categorically deposed about the cruelty on the part of the respondent towards the petitioner. Hence, submitted that since P.Ws. 1 to 3 categorically deposed that the respondent treated the petitioner with cruelty, the Family Court ought to dissolved the marriage of the petitioner with the respondent and granted divorce. He thus prayed that the order under appeal be set aside and the F.C.A. be allowed The learned counsel appearing for the respondent on the other hand, supported the findings of the Family Court, and submitted that as the petitioner utterly failed to prove that the respondent treated the petitioner with cruelty, the Family Court, was justified in not dissolving the marriage of the respondent with the petitioner and granting divorce, and no interference is warranted therewith. In the light of the arguments advanced, the main question that arises for consideration is whether the respondent treated the petitioner with cruelty, entitling her to seek dissolution of her marriage with the respondent and grant of divorce. Before proceeding to consider the question as to whether the respondent treated the petitioner with cruelty, in the light of the pleadings, evidence let in and arguments advanced by the rival parties, it would be appropriate if a reference is made to the provisions of Section 13(1)(ia) of the Hindu Marriage Act, which reads as under: “13. Divorce. (1) Any marriage solemnized, whether before or after the commencement of this 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- x x x x x x x x x (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or As per Section 13(1)(ia) of the Hindu Marriage Act, 1955, “cruelty” is a ground for divorce. The word “cruelty” is not defined in the Hindu Marriage Act. Therefore, what constitutes “cruelty” in matrimonial relationships, may be considered in the light of the legal decisions, which dealt with the definition and aspect of “cruelty”. In RASUL Vs. RASUL (1897) A.C. 395, defined (cruelty) and observed : “there must be danger to life, limb or health, (bodily or mentally) or a reasonable apprehension of it to constitute cruelty” The provision in clause (ia) of Section 13(1) which was introduced by Marriage Laws Amendment Act, 68 of 1976, simply states “treated the petitioner with cruelty”. The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct or and not fail in some circumstances. As held by the Supreme Court in PRAVEEN MEHTA Vs. INDERJIT MEHTA[1], by the amendment the legislature must, therefore, be understood to have left to the courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of man are so diverse and infinite that it is almost impossible to except a general definition which could be exhaustive and not fail in some cases. The Supreme Court in SAVITRI PANDEY Vs. PREM CHANDRA PANDEY[2] held that the word “cruelty” postulates a treatment as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. As observed, cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. The Court should consider whether the conduct of one party is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible. This is to be adjudged not from a solitary incident, but on an overall consideration of all relevant circumstances. I n VIJAYAKUMAR RAMCHANDRA BHATE Vs. NEELA VIJAYAKUMAR BHATE[3], the Supreme Court gave a new dimension to the concept of cruelty which is different from cruel treatment for any particular duration or period. The Court may go by intensity, gravity and stigmatic impact of cruel treatment when meted out even once. In a decision reported in NEELU KOHLI Vs. NAVEEN KOHLI[4], the apex Court held that to prove cruelty, it is not essential that there is intention to be cruel and what is important is the fact that cruelty is of such a type that it becomes impossible for spouses to live together. In a recent decision reported in Mrs. FLORA BOSE vs. SUPROTI BOSE[5], the apex Court held that: “The word “cruelty‟ finds no definition in the Act. Therefore, the word “cruelty” used in Section 13 (1) (ia) of the Act is in the context of human conduct and behaviour in relation to and in respect of matrimonial duties or obligations. It is a course or conduct of one spouse which adversely affects the other spouse. Cruelty can be mental or physical, intentional or unintentional. While judging the physical cruelty, Court has to judge the degree of such physical torture and if it is mental, the enquiry is required to the nature of cruel treatment and then as to the impact of such treatment on the mind of the other spouse. The ingredients of cruelty as required to be proved on record by the Petitioner are based on delicate personal relationship of husband and wife. Court, therefore, has to see the probabilities in a given case to find out the legal cruelty, not merely as a matter of fact, but as to the effect on the mind of the Petitioner spouse because of the acts or omission of the other. This cruelty besides physical, mental can also be corporeal. 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. Court dealing with the petition filed for divorce on the ground of cruelty has to keep in mind that the problems before it are those of human beings and the psychological changes in a spouses conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before such conduct can be called cruelty, it must touch a certain pitch of severity. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy a marriage. Foundation of marriage is tolerance, adjustment and respect towards one another. Therefore, inherently tolerance of each others fault to a certain bearable extent has to be kept in mind before considering a particular conduct of a spouse towards the other as tantamounting to “cruelty”. The Court has to consider the mental and physical conditions of the parties, their characters and social status and therefore, the incidents which can be termed as “cruelty” have to be adjudged in a case on the facts and circumstances and the evidence adduced on record. It is not required that physical violence as well as mental torture are essential to constitute cruelty. Even conduct inflicting a miserable mental agony and torture under the given circumstances may constitute cruelty within the meaning of Section 13(1) (ia) of the Act. In case of physical cruelty, the Court generally gets direct evidence but in case of mental cruelty, the Court has to first make an inquiry to the nature of cruel treatment, the impact of such treatment in the mind of the spouse if it caused reasonable apprehension that it can be harmful or dangerous to live with the other. It is not necessary for the party to narrate each incident against the other spouse to constitute such conducts as cruelty. Sometimes two or three incidents may be sufficient to prove the cruelty committed on the petitioner by the other spouse. Many a times mental cruelty is more severe than the physical cruelty. In ‘Samar Ghosh Vs. Jaya Ghosh’ (2007) 4 SCC 51, the Supreme Court has enumerated some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty. They are: “(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 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 or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, 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 a 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 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.” Evidently mental cruelty cannot be comprehensively defined, within which all kinds of cases of mental cruelty can be covered. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound and therefore, to assimilate the entire human behaviour in one definition is almost impossible. What may amount to cruelty in one case may not amount to cruelty in the other case because, concept of cruelty differ from person to person depending upon his/her upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. The concept of mental cruelty has changed with the passage of time; because of impact of modern culture through various medias electronic and print and other value system. Therefore, there cannot be any straight jacket formula or fixed parameters for determining the mental cruelty in matrimonial matters. No uniform standard, therefore, can be laid down for guidance what may constitute mental cruelty in matrimonial disputes.” In the light of the above legal decisions governing “cruelty” in matrimonial relationships, we may now notice whether the respondent treated the petitioner with cruelty, in the light of the pleadings, evidence let in and the arguments advanced. The petitioner and the respondent were married on 1.7.1999 and they both lived happily for six months and thereafter, it is the case of the petitioner that the respondent started ill-treating her. Admittedly, the petitioner is a deaf and dumb girl and her marriage was performed with the respondent. The parties herein belongs to Brahmin community. The parents of the petitioner are employed whereas the father of the respondent is a teacher. Admittedly, the parents of these spouses hails from rural background. By reason of employment, the petitioner is living with her mother as her mother is Head Mistress working in a deaf and dumb school at Lawsons Bay Colony, Visakhapatnam. The parents of the petitioner had two children i.e. petitioner and her brother. Both are deaf and dumb by birth as their parents are blood relations. Admittedly, the parents of the petitioner are well to do and they own substantial properties at Visakhapatnam, whereas the respondent comes from a poor family. Having thought that respondent would be suitable for marriage with the petitioner, the parents of the petitioner arranged the marriage with the respondent on the fond hope that the respondent being poor, will look after the petitioner with love and affection. That might be the reason for the parents of the petitioner to take the respondent as their illatom son-in- law. The