IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO(HMA) No.277 of 2003. Judgment Reserved on: 26.02.2008. Date of decision: 25.03.2008. Smt.Manorama @ Santosh ….Appellant-Respondent Versus Man Singh ….Respondent-Petitioner Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. For the Respondents: Mr.Ramakant Sharma, Advocate. Dev Darshan Sud,J. This is the wife’s appeal against the judgment and decree of the learned Additional District Judge, Solan, dissolving the marriage between the parties on the ground that in view of the allegations and counter allegations of cruelty and maltreatment it is not possible for them to live together. The petitioner and the husband were married according to Hindu rites and ceremonies on 30.1.1996. They lived together at village Chamyawal where a son Rajat was born to them out of wedlock on 14.12.1996. It was pleaded by the 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 respondent-petitioner that the appellant had left his company and returned to the matrimonial home in July, 1997 where they stayed together only up to September, 1997. It is pleaded that she again joined his company in October, 1999. The grievance of the husband is that the appellant has the habit of leaving the matrimonial house according to her own will. He pleads: “That the respondent is either mentally disturbed or is a case of some disease as she only remain busy with the son and neither allows anybody to touch him nor give him proper food and she always remains quarreling with the others and remains saying something or the other to everybody and she does not take any interest in house hold working. In this way, the mental and physical cruelty to the petitioner is there”. These allegations were denied by the appellant who state that she was ready and willing to join his company. Learned trial Court, after placing reliance on decision of the Allahabad High Court in Poonam Gupta vs. Ghanshyam Gupta, AIR 2003 Allahabad 51, annulling the marriage by decree of divorce on the ground that it was not possible for the two to live together and therefore, it had broken down irretrievably, allowed the petition of the respondent-husband. 3 The respondent-petitioner in his evidence stated on oath that his wife always says that she does not like him and was constantly quarreling with him on one pretext or the other. She even assaulted him physically. He also says that she is habitual in leaving the house without informing anybody and takes the minor child alongwith her. Complaint Ex.PW-1/A was filed by her with the police against him and other members of his family. He states that after 1997 there was no cohabitation between the parties. In cross- examination he admits that the appellant had stated before the police that Ex.PW-1/A had not been filed by her and that there was no other complaint instituted by her. He also admits that the appellant expressed her willingness to join his company, but according to him this is only show acting. PW-2 Vijay Chand, is the elder brother of the respondent, who has repeated and affirmed some of the allegations which have been made by the respondent-petitioner. PW-3 Mr.Kuldeep Singh and PW-4 Mr.Budhi Ram, have tried to support the case of the petitioner. PW-5 Shri Mast Ram also affirms in evidence that the appellant was quarreling with the respondent constantly, calling him “Coolie, Kabari” and that she could keep people like him for her domestic help. As against this evidence, the appellant appeared as RW-1 denying these allegations and reiterating and reaffirming that she was willing to stay with the appellant. RW-2 Shri Chaman Lal, Pradhan of Gram 4 Panchayat, states that he is not aware about any dispute between the parties. To similar effect is the evidence of RW-3 Shri Dharam Singh and RW-4 Shri Bali Ram, who is the father of the respondent. It must also be noticed that the appellant has made a grievance that the respondent-petitioner did not care to look after her when she was admitted in hospital. She has placed on record medical evidence in the nature of treatment slips/admission slips to the house/primary health centre being mark `A’ to mark `A- 8’. She stated that the husband was duty bound to have looked after her and cared for her when she was in hospital. This is the entire oral and documentary evidence on the record. The law of cruelty has been summarized by the Hon’ble Supreme Court in Samar Ghosh vs. Jaya Ghosh, (2007)4 SCC 511, holding that: “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 5 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 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 6 taking aforementioned factors into consideration. 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. 7 (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 8 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 without medical reasons and without the consent or knowledge 9 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“. 10 It is in these parameters that the case of the parties is to be considered. An overall assessment of the evidence leaves no doubt in my mind that there is some maladjustment between the parties. The evidence brought on the record does not justify the conclusion that the marriage between the parties has broken down irretrievably or that they have reached a point of no return from where it will impossible for them to live together as husband and wife. Of-course, there is evidence on record to suggest and establish that they have been quarreling amongst themselves and using harsh language against each other. This fact cannot be considered of such a nature which can in any manner be termed as indicating that marriage has broken down and that the parties have reached a point of no return. The pleadings and the evidence on the record does not establish acts of cruelty. This Court is conscious of the fact that it is not only the fate of the parties to this petition but also the future of the son who was born in 1997 which is involved. Deterioration in relations between the husband and wife, allegations and counter-allegations are all acts which would traumatize the child. The learned Court below has invoked the principle of cruelty under Section 13(1)(c) of the Hindu Marriage Act, 1955 in a manner not justified by law and without contemplating the consequences and also the fact that the acts alleged by the husband as also the counter 11 allegations made only point to maladjustment which can be rectified and not of a situation where the marriage has completely broken down. As I have noticed above, I do not find from the evidence that the alleged conduct of the appellant is of a nature which would entitle the petitioner-respondent for a decree of divorce as prayed for. True that irretrievable marriage should not be continued by force of law, but at the same time this principle cannot be allowed to be invoked in a casual manner. In the facts and circumstances of the case, this appeal is accepted. The judgment and decree of the trial Court is quashed and set aside. There shall be no order as to costs. March 25, 2008. (Dev Darshan Sud) (aks) Judge.