IN THE HIGH COUKT OF CHHATTISGARH, BILASPUR /0 DB: HON'BLE I.M. QUDDUSI & HON'BLE H.K. AGRAWAL, JJ Fitst ABpeal (Ml. No. 87 OF 2009 APPEAL UNDER SBCUTION 19 OF THE FAMILY CODRT A<?T APPEARANCB Mr. Jauak Ram Verma, counsel for fhe appellaat Mr. Santosh sahu, counsel fbr fhe respondenfc ORAL ORDER (08.09.2010) Per I.M. OUDDUSI, J. 1. This appeal has been fited by the defendant/wife a^iast fhe impugned judgment aad decree dated 17.09.2009 passed by fhe II Addl. Principal Judge, Family Coiirt, Dur^ (C.G) whereby the appUcatron filed by the respoiident/plaintiff under section 13-A of the Hiudu Marriage Act has been aUowed. The brieffacts ofthe case are as uuder (i) That fhe uiarriage between fhe appeUaat aad respondent was soleuuiized on 16.06.2003 in vitlage Bharda. The brother of appellant Bhagwati Venna has married with fhe sister of respondent Priti Venna on APPELIANT DEFENDANT Smt. Rani Bai @ Shakuntala Verma, w/o Shri Chandrasekhar Verma, aged about 30 years, R/o Village Bharda, Tahsfl. Berla, Dista-ict Diu^; (C.G). Vs. RB8PONDENT Chaadrashekhar Venaa, s/o Late CIihabi Ram Verma, aged about 34 years, By caste Kiinni, R/o Venaa Book Depot, Sluvpuri, Jamzil, P.S. Jamul, Distt. Dvrg (C.G) Govenuneut Servaut holdiag post of Forest Guard at Daundi (C.G) PLAINTIFF 16.6.2003 itself on Ourawat systein (uiutual exchange). However, the inarriage between Bhagwati Verma and Priti Verma has been dissolved. (ii) In the plaiat, it has been stated fhat the appcUant and respondeut are living separately for the last five yeans. It is alleged that the appeBaat uscd to pressurize hcr husbaad (Tespondent) to leave his parentel relations and their obligations. When her adwice was not heeded, fhc appeBant left her husband and had gone to her inateraal home. The appeUant iucited her brother to leave his wife (Ncauul) who is the sister of her husbaad (respondent herein) aad any how fhe appellant has succeeded in gettmg her brother separated firoiu his wife Priti Verma. Several tiines, thc plainttff/ respondent alongwifh elders had gone to fhe place of his wife, appeUant herein, and tncd to convin.ee the appeUant through the elders to come back and maintain marital relations with him, but the appellant has refused to go with him. On fhe ofher Iiand ia order to harass hiin, s6e has filed appUcation u/s 125 Cr.P.C. teveUing aUegations ofabuses, beating etc., against hiia. According to the plaintifF, the conduct ofthe defendant towards the family ofplauitifF is not at all good, therefore, he prayed for dtesolution ofmarriage. (iii) In the written stateiaent filed by the appeUant/ defendant she has uot dcuted the fact ofinarriage with the respondent plamtiff and the mjasnay between her brother Bhagwad Verma and sister of her husband Pnti Vemia on Ourawat systeiu (mutual exchaage). But she deiued fhe other allegations inade ia the plaint. She submitted that she never deserted her husband and fhe husband is not coiniag forward to take back her with him aud .the appeUaat is not entitled to take divorce fium her. According to the appellaat, ia the year 2004 during holy festival when she was canying pregaaucy of 8 inonths, fhc 3. respondent himself took her to her laateraal home and left there. Siace then he did not coine to hcr. When she waats to coine to her niatnmoiual house, her niother-in-Iaw expressed niabiUly for her deliveiy, therefore, she deUvered at her matemal hoiae on 24.05.2004. After her deMveiy, no body has conie to see hcr even after her father had gone to Jamul and informed to her husbaad aad in-laws. Later on, afler her father made contacts with theia, they told that they wffl take back her wifhiu 14-15 nionths but no body has coine to take back her. Thereafiter, aflfcer 3-4 inonths, when her father, brofher aad ofher caste niembers Iiad goiie to her ia-laws place the respondenfs inother aad sister denied to keep with theni ia fhe absence of respoudent and even she deiued to send her daughter Priti. Then they have rcturued. After soine days, she filed complaiut in Women Police Statiou, Duxg where certaui dates were fixed for appearance of her husbaad but he Iias not appeared. Then she filed coinplaint in conununity and the respondent atteaded fhe ineeting of coTnmiinity where he told that he wffl not give regard to decision of couununily chief until aad unless she withdraws her complaiut ia the Mahfla Thaaa. Therefore, she has withdiawn theconiplam froui MahOia Thana on the advice of coxumunity people. However, even thereaflfcer she had tried for coiaproause through fhe Coiiuntuuly and the respondeat w^ directed by fhe Coxnmunily, but he denied to keep her with lum. Therefore she has not deserted her husbaad at any point 'of tiiae, but plaintiff hiiusetf has left her in her inatemal hoine without any reason. Aftjer hearing both fhe pardes and consjdering fhe inaterial on record, fhe learned trial Court held that the appeUant has deserted her husband wifhout aay proper aad sufficieat \ •^ reason and the cruelly on her part towards the respondent is uiade out. 4. We have heard leamed couasel for the parties and have also perused fbe records ofthe coiut below. 5. The respondent examined himself as A.W. 1 and has also exaiumed one Bhupcudra (A.W.2) whereas the appeUant has examined herselfas A.W. 1. 6. The respondent has stated iu his exaiimiation before fhe trial Court that marriage was performed between him and appeUant Rani Bai and betweeu his sister Priti Verma and brofher of defendant Bhagwati Verma on Ourawat systeni (mutual exchaage). After the marriage they started residiug in fheir respective fanulies, but the appeUant used to force him to reside separately fKxm. his fanuly. He has further stated that since he got coinpassionate appoiatment after death of his father, fhere was responsibility on him to look after lus inofher and two sisters. Therefore, he did not give » heed to fhe advice of his wife and for fhis reason, the defeudant had gone away to her inaterual hoine in viUage Bharda where also she foiaented her brother not to dischai^e the niarital relations wlth his wife who is sister of the Tespondent/plaiatiff. Accordiag to fhe respondeat, the appeUaat tned to get rid of Priti Vcmia fix)ia the inarital relations of her brother Bhagvati Venna and ultimately the appeUant Iiss intentionatly got separated Priti. Venna froin her brofher. The respondent has further statcd that fhe appeUant herself catled her father Dbaimalal and had gone •"-,. \ ^ away to her matemal hoine with her fatfacr. Thereafter, the respondent along-with eldersliad gone to her materaal hoiae and tried to convince her but she did not come back. On fhe ofher hand, her biufher deserted his sister without any reason and ultimatety divorced her. Ou this pretext, the defendant bas fited application u/s 125 Cr.P.C., aUeging abuses aud beating agaiast the plaiatifE' aad after 18 laonths of fhe inarriage she started living continuousty in her inateraal hoine and her conduct towards the respondent and his feinily was not good. [n such a situation, accoiduig to the respondent, it would not be possible for TiiTn to lead the laarital life aad to niaintaiu conjugal Ufe wifh fh.e appellaufc 7. However, the respondent ia his cross-examination has steted that fh.e appeUaat used to deiuand that wherever he resides, she wants to reside there. Eveu today she wants to reside with luin at bis workiag place Dondi but the respondent wants her to reside at Jamul. Therefore, the appellaat says thatshe does not want to reside at Jaxuul. On a suggestion, fhe PIaintiff has stated tihat it M iacorrect to say that he himself has brought his wife to her inatemal honie during holy festival and fh.e plaiattff and his aiother expressed iaabUily to make arrangem.ente for her deUveiy at Jamul, fh.erefore, she has delivered at her inaterDal home. He has furfh.cr stated in his cross exaniiaation that it is iacorrect to say that her brotfaer Bhagwati Verma and father alongwith soiae comm.unity mexu.bers tiaaiely Toran Nayak, Girteh Nayak aad Harish ete., canae to Jam.ul and then hc rejected to keep fhe appeUant and her daughter wifh hua. Alfhoiigh. N. r the respondent has admitted that the appeflaut h^lodged report in Malula Thaua, Bhflai and niade coinplaiat before the Conuniuiily aad fhe cluet' of coininuiuly has requested fhe respondent to keep the appeUaat wifh him, but he expressed fhat he was not ia a position to keep her with him. 8. A.W.2 Bhupendra Verma in hls deposition has stated fhat the appellaat used to instet her husbaad to live separately from. his parent relations aad avoid fheir responsibilities. When her husbaad refused hcr advice, she caUed her father aad returued with him to her inaterual hoiae. He Iias further stated that the appellant also prompted her brother to desert his wife Priti Venna, who is fhe sister of respondcnt and ultimately she laaoaged to separate her brofher fioin his wife F>riti Verma. He has also stated that he tned to convince fhe appeltant, but she dM not agree. She was adamant aad she had her own ideas, She persistently used to say that fhe respondent should reside separately, but thc respondent lookmg to the resiionsibilities ofbis inother and two sisters, » could not maiatam marital reladous separately. Therefore, the appellaut bas filed application u/s 125 Cr.P.C. This witness has stated in his cross-examination that m.eetings of fhe coininurdly were conducted on 5 to 6 occasions, but ia the last ineeting in wluch he attended, fhe m.am^e of appeUant aad respondent • was dissohred in the form of society fhat u by caste custoias. 9. On fhe contrary, fhe appeUant Rani Verma has steted in her deposition that when she waa canyiag pregnancy of 8 moafhs her husband himself brought her to her matemal X. \. } I- 10. hoiue on the occasion of Holy festival, and he assured fhat he will take back her after Holy but he did not com.e. Eveji after the iuformation regardiag birfh of chUd nainely Kumltiun, 'was sent fhrough her father who had gone to Jamul, he did not coine and later on after one inonth the fafher of appellant has contacted fhe respondent and fhe respoadent has told that he wfll coiae withia 10-15 days and will take back her but he did not tum up. Then her father & brother along-wifh other coinjauiuly ineiabers Toraa Naik, Girish Naik, Harish etc., had gone to Jainul to assign the appeUant & her child Kumkuia ia her ia-laws house. Toran has already informed about theu- arrival but the respondent had gone elsewhere and her inother-in-law and sister iu lanff Priti Venna were there aad fhey deaied to keep her ia the niatruuonial hoine, fherefore, fhey had gone back. After a few days, she has filed report in Mahila Thaaa and also filed coiuplaint before the caste-coininurdty aad fhe caste people tried to coinproinise the matter. for two years, but the respondent did not conie. ' The appellant in her cross-exainuiation has clearly stated fhat she does not waat to reside in patemal house of the husband and she wauts to reside at the working place ofher husband. She has admitted ia her cross-examinatioa that her husbaad got coiupassionate appoiatment after death of his fafher and he was responsible to look after his mother who is residing ia his patemal house at Jamul. She has herself adinitted that fhat fhe inarriage betwecn her brother Bhagwati and the sister of respondent Priti was dissolved in presence of fhe CoTnmiinity. On a suggestion being xnade in Para 16 of her cioss examination fhat fhe respondent is ready to keep her at Jamul where hls niotfaer is residing, the appeUaat has replied that she had inarried wifh the respoudent aad not with fhe niother ofrespondent. 11. After heanag bofh the parties aad considering the inaterial on record, the leamed trial Court held that the appeBant has deserted her husband without any proper and sufficient reason aad thc cruelty on hcr part towards fhe respondent is niade out. The trial Court has recorded the finding that it has been proved fix>ni the version of Plaintiff and his witaess Bhupendra that when she was carrying pregnaacy of 8 inonfhs, her fafhcr brought her to the matemal hoine before Holy festival, but the fact that fhc information regardiag her deliveiy aad then they had gone to Jamul to assign the appellaat and her child Kiuakuin to fhe respondent is not proved. It has also recorded a finding that the marriage between fhe brofhcr ofappeUaut aad fhe SMter ofrespondent r has already beeu dissolyed aad thc divorced sister of the respondent is leading fhe barren Ufc ia fhe house of the respondent aad in such a situation, it caanot be imagined ffaat fhere would be cordial relations between. fhe appeUant and respondent. Therefore, the trial Court has directed for dissolution of fhe vasaxiaye: hcld between the appellant and respondent and also directed fhe respondent/plaintiff to deposit Rs.1000/- per nionfh towards the luaintenance of the daughter tiU her marriage. 's.. •-.... -9- Q 12. Accordiug to FtaiihUn Mariam Webster, 'cruelty' means causing paia aud sufferuig to others. The ineaniug of "cruelty" has been given iu Black's Law Dictioaary (Eighth Edition) which reads that the iatentlonal and malicious infliction of inental or physical suffering on a Uviag creature esp. a human; abusive treatmeut; outrage. Furfher "Cruelly* has been classified as under: 0 Cruelty to a child (ii) Cruelty to animals (iii) Extreine Cruelty (iv) Legal cruelly (v) Mental cruelty (vi) Physical cruelly "Legal crueiy reads as under: "Cruelty fhat wffl justify granting a divorce to the injured party; specif., conduct by one spouse that endangers the Ufe, person, or healfh of the other spouse, or creates a reasonable apprehension ofbodily or xuental harin." "Mental cruelty" reads as a gTouad for divorce, one spouse's course of conduct (not iDVoIving actual violence) fr that creates such anguish that it endaagers the life, physical health, or niental health ofthe other spouse." 13. In Naoeen KohU -vs- Neelu KohU (2006) 4 SCC 558 disposing of the appeal, Hon'ble the Supreme Court held that Cruelty is a course or couduct ofone, which is adversely affecting fhe other. The cruelly inay be ineutal or physical, uitentional or iiniutentional. The cruelty aUeged inay lai^ely depend upon fhe type oflife the pardes are accustonied to or their economic aud social conditions and their culturc and huraaa values to which they attach iinportance. Each case /^, -10 has to be decided on its own nierits. In Naveen Kohli's oase (supra), referring to the decision reported ia Gtttnncinath Ptrttnaifc y. State of Orissa, (2002) 2 SCC 619 the Supreine Court quoted the observations vide Para 54 regardiag cruelty as xuider: "7. The concept of cruelly and its efFect varies froin individual to individuat, also depending upon fhe social and econoiuic status to which such person belongs. 'Crueliy for the purposes of constituting the offence under the aforesaid section need not be physical. Even niental torture or abnonnal behaviour day amount to cruelty and barassinent ia a given case.* In Naveen KohU's case (supra) the Supreme Court has further referred to the decision of a fhree judge Bench reported in A. Jayachein^'a V. Annel Keair, (200S) S SCC 22 aud quoted the observations videpara63 that; "10. the expression 'cruelty' has not been defined ia fhe Act Cnielty can be physical or niental. Cruelly which is a ground for dissolution of inarriage niay be defined as wiUful and unjustifiable couduct of such character as to cause daager to life, limb or healfh, bodUy or uiental, or as to give rise to a reasonable apprehension of such a danger. The question of niental cruelly has to be considered ia fhe light of fhe norms of inarital ties of the particulaT sociely to which fhe parties belong, their social values, status, enviroruiient iu which they Uve. Crueltv, as noted above, included inental cruelty, which faUs within the vumisw of a m.atnmoiual wrong. Cruelty need not be phvsical. If fi-oin the conduct of the spouse same is estabUshed aad/or an inference can be legitixaatelv drawn that fhe treatiaent ofthe spouse is sych that it causes an apprehension in fhe mind of the other \. spouse, about his or her mental welfare then ttus conduct amouats to cruelty. In a deUcate human relationship like matrunony, one has to see fhe probabUities ofthe case. The concept, proofbeyond the shadow ofdoubt, is to be applied to criminal trials aad not to civfl niatters aad certaixdy not to niatters of such delicate personal relationship as those of husbaad aud wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not inerely as a inatter of fact, but as fhe effect on the minrl of the coinplaiaaat spouse because of the acts or omissions of the other. Crueltv masLbe phvsical or corporeal or inav be m.entel. In phvsical crueltv, fhere can be tangible and direct evidence, but ia the case of inental cruelty fhere mav not at the same time be direct evidence. In cases where there is no direct evidence, the courts ase reauired to orobe is.to the inental process aud meutal efFect of incideiits that are broueht out in evidence. It is in this view that one has to consider the evidence in infltrimnnial disputes. (Emohasls suppUedl 11. The expression 'Cruelty^ has been used in relation to huinaa conduct or hiimaa behaviour. It ^ the conduct ia relation to or iu resuect of laatrunoiual duties, aud oblJKations. Cruelty is a course or condyct of one, which is adversely affecting the ofher. The crueltv inav be inental or physical, uitentioiial or uiunteiitional. If it is physical. the court wiU. have no oroblein in determiains; it It is a question of fact aad deeree. If it is inental, the problein presents difficulties. First, the. enquiiy inust begia as to the nature of cruel treatment, second the itupact of such treatment in fhe inind of the spouse, whefher it caused reasonable apprehension that it wouM be hannftil or injurious to live with the other. Ultnnately, it is a matter of mference to be drawn by taking into account the nature of fhe conduct and its efFect on the '\. -/Z-- complaining spouse. However, there laay be a case where fhe conduct complamed of itsetf is bad enough and per-se uulawful or Ulegal. Then the unpact or mjurious effect on the other spouse need not be enquired iato or considered. tn such cases, the cruelly witl be estabUshed if the conduct itself is proved or admitted. See Sho&ha Reini Vs. Mddhufcar Reddi, (1988) I SCC 10S. 12. To constitute cruelty, fhe couduct coniplained of should be 'grave aad weighty' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live witti fhe other spouse. It m.ust be soiuethiag morc serious thau 'ordinary wear aad tear of married life'. The conduct, taking iuto consideration tbe circuinstaaces aud backgroiind has to be examiacd to reach fh.e conclusion whether the conduct coinplauied of amounts to cruelty iu fhe inatriiuoiual law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and inental conditions, custoins aud teaditions. It is diEBcult to lay dowii a precise .definition or to give exhaustive description of fhe circiunstances, which would constitute cruelty. It must be of the type as to satisfy the conscience ofthe court that fhe relatioastup between fhe pardes had deteriorated to such aa extent due to the conduct ofthe other spouse fbat itwould be impossible for them to Uve together without niental agony, torture or distress, to entitle the coinplaming spouse to secure divorce. Physical violeace is not absolutely esscntial to constitute cruelty aad torture iiiay weU constitute wifhia the ineaiung of section 10 of fhe Act, Mental cruelty ruay consist of verbal abuses aud insults by usiug filthy and abusive language leadiag to constant disturbaace of mental peace ofthe other party." '^. -15- 14. On perusal of fhe evidence of both the parties, it would clearly show that fhe respondent got coinpassionate appointment after death of his father aad he is responsible to look after his niother aad two sisters therefore when he refused the advice of his wife to live separately and avoid their responsibitities, she (appeUant) had gone away to her materpal hoine at vill^e Bharda wifh his father where she foinented ta-oubles iu the inarital relations of her brother Bhagwati Verma and sister of the respondent Priti Venna and idtimately the xiiamage between Bhagwati Verma aad Priti Verma has been dissolved aad tiie divorced sister of the respondent is leadiag a barren Ufe ia fhe house of the respondent at Jamul. The appeUaat has ffled appUcation u/s 125 of fhe Code of CivU Procedure to harass her husbaad aUegiug certain. false aUegations. She has further lodged report in Mahila Thana, Bhilai aad also filed complaint before fhe Conunuiuty. Even in her cross examiaation vide Para-16 on a suggestion ftiat fhe respondent is ready to keep her at Jam.ul where his inother is residing, fhe appellaat has adamaatly replied that she had . inacried with fhe respondent aud not with the m.0ther of respondent, hence she does not reside at Jamul. Therefore the leamed trial Court held that it is niade clear fhat she was adamant not to reside at Jamul. Considering the totaUty ofthe facts aud circuDistaiices ofthe case aad in viewofthe decisions of the Supreme Court referred to above, we are of fhe opinion that inental cruelty has been inade out due to ' the obstmate conduct of fhe appeUant; fherefore, the /%> respondent is entitled to get decree ofdivorce. "\ 15. In view ofwbat has been stated above, we are uot iucUned to in.terfere with the findiags of the trial Court However, we direct that apart froin Rs.1000/- per inonth granted by the trial Court towards the mamtenaace of the daughter, the respondent shatl pay Rs.1,50,000/- to the wife as permanent alimony. Subject to this modificatioa, rest of the judgaient aad decree dated 17.9.2009 shall remain iatact. 16. In the result, appeal is allowed ia part to the above extent. No orders as to cost. Sd/- LM.Quddussi Judge Sd/- N.K. Agrawal Judge Rao ;,t.y