!^ -'^'~ I VSES-,^ S ~t;;i Hli \^^/ f^63 HJGHCOURTQFCHHATTISGARHATBII.ASPUR Division Bench: Hon'bleShri Dhirendra Mishra and Hon'ble Shri Dilip Raosaheb Deshmukh, J.J. Appellant (Non-applicant) Respondent Applicant FirstAppeal (M.) No.51 of 2007 Smt. Mamata Shrivastava, versus Taresh Kumar Shrivastava Appellant (Applicant) Respondent Non^aDDlicant FirstADpeal No.199 of 2003 Mamata Shrivastava yersys Taresh Kumar Shrivastava JUDGMENTFORCONSIOERATIQN Sd/- DUip Raosaheb Deshmukh ^— Jydge HON'BLE SHRI JUS"!r;CEDHIRENDRA MISHRA. 5-d3aA<^_-_- Sd/- Dhirendra Mishra Judge Postforpronouncementofjudgment ^, .05.2(X)9 r'^.;1'^ &Sd/- p35:2D09 HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram : Hon'ble Shri Dhirendra Mishra and Hon'ble Shri Dilip Raosaheb Deshmukh. JJ. Appellant (Non^pplicant) Respondent Applicant First Apoeal (M.l No.51 of 2007 Smt. Mamata Shroastava, D/o Shri Udainarayn Shrivastava, Aged about 29 years, R/o near B. T. I. College, Bemetara, District Durg (C.G.) versus Taresh Kumar Shrivastava, S/o Shri T. P. Shrivastava, Aged about 35 years, C/o Kazf Azizuddin Ahmad, R/o Bayron Bazar, Raipur, Disbict Raipur (C.G.) First Appeal under Section 19 of Familv Court Act. 1984. Appellant (Applicant) Respondent Non-applicant FirstADpeal No.199 of 2003 Mamata Shrivastava w/o Taresh Shrivastava, Aged about 25 years, Occupatfon Nothlng, Resident <rf Purani Basti, Kayastha Para, Raipur, Hal Mukam Kobia (Bemetara), Thana & Tahsil Bemetara, District Durg (C.G.) versus Taresh Kumar ShrNastava, S/o Tulsiprasad Shrivastava, Occupation Regional Manager, Pharmasivocal IVtedical Company, Aged about 32 yeare, Resident of Purani Basti, Kayastha Para, Raipur, Thana & Tahsil, Raipur (Purani Basti Thana), District Raipur. Aopeal under Section 28 of the Hindu Mamaae Act 1986. Present: Ms. Deepali Pandey with Smt. Mamta Shrtvastava, counsel forthe appellant. Shri G. M. Ahuja with Shri Sudhanshu Shrivastava, counsel for the respondent. JUDGMENT (Delivered on this •^dayofMay,2009) BF" The following judgment of the Court was delivered by Dilip Raosaheb Deshmukh, J.: This judgment shall govern First Appeal (M) No.51 of 2CU7 and First Appeal No.199 of 2003, the result and the fate of which depends upon the determination of the core question i.e. the meaning and import of the expression "cruelty" as a matrimonial offence. (2) First Appeal No.199 of 2003 is directed againd the order dated 16-08-2003 passed by the Additional District Judge, Bemetara, District Durg in Civil Suit No.14-A/2002 whereby an application under Seclion 9 of the Hindu Marriage Act, 1955 (henceforth "the Act") filed by the appellant, was dismissed. Firet Appeal (M) No.51 of 2007 is directed against the judgment dated 10-05- 2007 passed by the llnd Additional Principal Judge, Famity Court, Raipur in Case No.51-A/2006 whereby the suit Tor dissolution of mamage under Section 13 (1)(i- a) of the Act instituted by the respondent was decreed and the marri^e between the parties was dissolved by a decree for divoree. (3) Admittedly, the appellant-Mamta Shrivastava was married to respondent- Taresh Shrivastava on 09-12-2001 in accordance with Hindu rttes and rituals at Bemetara. Parties lived together as husband and wife till 18-07-2002; (4) The application under Section 9 of the Act was filed on 28-0&3002 by the appetlant for restitution of conjugat rights on the ground that 15 d /s after the marriage, the respondent started treating her with cruetty white ey were Hving in a rented house at Awadhia Para, Raipur and his family members atso threatened to kill her. Despite being informed promptly, the respondent did not come to her rescue, as a result of which, after lodging report in h4ahila Police Statton on 18-07-2002, she returned to her matemal home. The respondent took np,sfa" take her back in the marital fold. / ^"c"^ ^fC..^ 1I. '<sa%& 1: '<s^:y^^'^^ (5) The resppndent had denied the allegations and pleaded that the appellant had refused to live in the house at Purani Basti, Raipur with his parents and pressurized him to live separately, due to which he shifted to a rented house at Awadhia Para, Raipur. While the respondent was on tour, the appellant woukl unnecessarily threaten him on the telephone that she woutd take some drastte steps unless he deposited Rs. 1 Lakh in her name in the bank. The appellant also attempted suicide by cutUng the veins. She had also thrcwn her Mangalsutra. She would behave in an abnormal manner by removing clothes and throwing utensils. She would always threaten to leave the house. On 17-07-2002, she quarreled with the landlord and report was lodged against her at Police Station Azad Chowk, Raipur. When the respondent rdurned from tour on 19-07- 2002, the landlord informed him that the appellant had left the house. In this manner, the appellantwas continuously treating him with cruelty. (6) The tearned Additional District Judge, Bemetara after appreciating the evidence held that the appellant-wife had, without reasonable excuse w'rthdrawn from the society ofthe respondent. It also took into consideration the iactthatthe respondent herein had to face mental agony due to a report under SecUon 498-A of the I.P.C. lodged by the appellant against him. The respondent and his family members had to seek anticipatory bail. It also took irrto consideraBon that the appellant had received the artictes given by her parente at the time of the marriage from the respondent. In para 29, it vras held that the appellant herein had inflicted mental cmelty on the respondent by continuously threatenhg to commit suicide. On these premises, it dismissed the application under Sedion 9 of the Act filed by ttie appellant herein. (7) In Case No.51-A/2006, the respondent herein had pleaded that after the marriage, the appellant forced him to live separately from his parents. Despitg 4 succumbing to her request and living in a rented accommodalion, the appellant used to scratch her body w'th bangles and attempted to commit suicide by cutting veins of her hand. This frightened the respondent. On one occasion, the appellant threw her Mangalsutra and put itonty after apology was tendered by the respondent. She used to threaten to leave the house. She was so arrogant and used to pretend eating mosquito coil and would threaten to commit suickle by jumping from the terrace. She also threatened the respondent to implicate him and his family members in a dowry case. On consultation a ps^shiatrist opined that she was an old mental patient. The appellant refused to cook and do household work and quarreled time and again with the respondent who was required to bring food from hotel. A demand for Rs.1 Lakh by the appellant had put the respondent completely out of place. Despite reconciliation sessions jn Mahila Police Thana, the appellant did not improve her behaviour. Upon report of the appellant under Section 498-A of the I.P.C., the respondent and his family members were required to seek anticipatory bail. The appellant made complaints against the judges who were seized of the matter. On her application, ttie articles which were given at the time of marriage were also returned to the appeBant. The conduct ofthe appellant had lowered the social image ofthe respondent and his family members. Father of the respondent faced utter humiliation and had to apply for voluntary retirement which was also published in the newrepaper. The appeltant was capable of taking any extreme step to humilisrte and torture the respondent. (8) The appellant denied the allegations in toto and pteaded that her behaviour was very cordial and she was a duttful vwfe and used to do all household chores. At the behest of his family members, the respondent started harassing and beating her. Behaviour of the respondent and his family members was very cmet. On one occasion, she was dragged down from the stairs byjt*' sister-in-law of the respondent, due to which she received injuries. It was ateo pleaded that she was tortured for dowry and was given poison, due to which she was shifted to hospital and from there to a rented house. Due to the persistent mental and physical torture, she had no other option but to file cases againd the respondent and his Tamily members. (9) The leamed llnd Additfonal Principal Judge, Family Court, Raipur framed as many as five issues. On appreciation of evidence orat as welt as documentary, it held that the appellant herein had inflicted mental cruetty on the respondent. Considering the series of events projected in the evidence and also the documents and ttie fact that repeated conciliation efforts had failed, it held ttiat re-union between the parties was an impossibilify. tt disbelieved ttie caseof the appellant herein in toto and held that it was the appellant who had treated the respondent with cruelty and on this'ground allowed the petition under Section 13 (1)(i-a) ofthe Act and dissolved the marriage befrween the parttes by a decree for divorce. (10) We have heard Ms. Deepali Pandey, learned counsel for the appellant and Shri G. M. Ahuja with Shri Sudhanshu Shrivastava, leamed counsel for the respondent at length. We have atso perused the record. (11) The question which arises in ttie facte and circumstances is whether a case for divorce under Section 13(1) 0-a) ofthe Act has been made out. Answer to this question depends on determination of the quesSon formulated in para-1 (Supra). In SecGon 13 (1) of the Act, it is laid down that "13. Divorce.—(1)Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by elfter tfie husband or the wife, be dissolved by a decree of divorce on the ground that ttie other party— (i-a) has, after the sotemnization ofthe marriage, treated Uie ^ petitioner with cmelty. ^r'€\ ^S&T-J t ^1 1 ^^ I. t.1 '•fcj a^ Clause (i-a) of sub-section (1) of SecBon 13 of the Act is comprehensh/e enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehenston of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been thrt mental cmelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmftil or unsafe to live with the other party. The principle that cmelty may be inferred from tte whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mentel cruelty. Thus mental cruelty has to be established from the facts (Mulla's Hindu Law, 17th Edn.,Vol.ll p.91). (12) In S. V. N. Kameswara Rao Versus Q. Jabilll, (2002) 2 Supreme Court Cases 296, the apex Court observed as under:- "Mental cruelty in Section 13(1)(f-a) can broadly be defined as that conduct which infltets upon the other party such mental pain and suffering as would make it not pwsible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonabty be expected to live together. The sifairtion must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educationat level of the parties, the society they move in, the possibility or otherwse of the parties ever living together in case they are already U^ng apart and all other relevant facts and circumstances which jt is neither possible nor desirable to set out exhaustively? What is cruelty in one case may not amount to cruelty in another case. It is a matter to;be determined in each case having regard to the facts and cireumstances of that case. If it is a case of accusations and allegations, resprd must also be had to the context in which they^were made." (13) In Praveen Mehta vs. Indeijit Mehta, (2002) 5 Stiprema Court Cases 706, the Supreme Court has, after discussing law in details and its earlier judgments on the question raised above held in para 21 as under: 21. CrueHy for the purpose of Section 13(1) (i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in tfte mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difRcuttto establish by direct evidence. tt is necessarily a matter of inference to be drawn from the facts and cireumstances of the case. A feeling of anguish, disappointment and fnistration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and cireumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itsetf to cause mental cruetty. The approach should be to take the cumulative effect of the facts and circumstances eraerging from the evidence on record and then draw a fair inference whettier the petitioner in the divorce peUtion has been subjected to mental cruelty due to conduct of the other. (14) The case of the respondent that he had been subjected to cruetty by the wife is not put forth solely on the basis of one or two incidents. In G. V. N. Kameswara Rao Versus G. Jabllli (supra) paragraph 12, the Apex Court observed as under: "12. The court has to come to a conclusion whether the sste committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the stafais of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of mamages in a community life, ttie court should consider whether the conduct of the rounter- petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live togsther is impossible, and then only the court can find that there is cruelty on the part of the counter-petMoner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances." (15) Judged in the light of the principle discussed above, we find that the matrimonial relafionship between the parties was full of fcirbulence. The appellant had successfully persuaded the respondent to leave his parents and stay in a rented accommodation. Her behaviour was far from normal. She would prete&ct and threaten to commit suicide. She asked the husband to depreit Rs.1 Lakh in her account. She lodged a report under Section 498-A of the IPC against the husband and his famity members and upon grant of andcipatoiy bail, targeted even Uie presiding judges by making complaints against them. She even called her husband impotent which is also reflected in Ex.P-22(C). She teft the matrimonial house in the absence of the husband and did not return. On one occasion, she had thrown her Mangalsutra. Efforts of re-conciliation by the Mahila Police Thana had failed. The order sheets in civil suit No.51-Ae006 would show that repeated efforts fbr re-conciliation in the family Court had also failed. The learned AddiBonal Principal Judge, Family Court, Raipur has dlscussed the evidence oral as well as documentary in details with objectivtty and the finding arrived at by the learned judge is in conformity with the law laki down in Praween Mehta vs. Indeijit Mehta (supra). The cumulative effect of the behaviourat pattern of the appellant was that the appellant had, by her persistent abnormal behaviour inflicted mental cmelty on the respondent. The treatment accorded by the appellant herein to the respondent had been such as to cause an apprehension in the mind of the respondent that to live with the appellant would be extremely harmful or injurious. The reports lodged in Police against all family members (not sparing even the married sisters of the respondent) by the appellant and publicaBon of news items against ttie family members of the respondent lowered their image in society. The learned Family Court Judge has also considered in details the abnormal beHaviour of the appellant while drawing an inference of cruelty by her against the respondent. The threats by the appellant to the respondent and his family members would only show fcat the conduct of the appellant was such that it had become intoterable for the respondent to suffer any longer and Iwe together. The humitiation and agony suffered by the respondent and his family members was too much. Raj Kumar P.W.4, mediator in the marriage betoween the parb'es also stated that there was no demand for dowry in marriage. The learned Family Court Judge has drawn an inference of false implication of the respondent and family members in such cases by the appellant. In the context of facts and circumstances on record, we are of the view that the teamed llnd AddiUonal Principal Judge righUy came to a conclusion that the prayer of the respondent for dissolution of marriage on the ground of cruelfy under Section 13 (1) (i-a) of the Act was acceptable. For the reasons mentioned above, we are also of the considered opinion ttiat the learned Additionat District Judge, Bemetara was also justified in rejecUng the application under Section 9 ofthe Act for restitution of conjugat rights. (14) For the reasons mentioned above, we find no merit in First Appeal (M) No.51 of 2007 and First Appeal No.199 of 2003 whteh are accordingly dismissed. Sd/- Dhirendra Mishra Judge Sd/- DUip Raosaheb Deshmukh Judge Tumane