Case: Ramchander Vs. Ananta

but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of ‘mental cruelty’ can be drawn and they are only illustrative and not exhaustive.11. The plaintiff-husband alleged that after their marriage the defendant-wife did not like to live in the joint family and that led to shifting to separate residence and even there due to quarrels, the wife had with the respective landlords and neighbours, there was frequent shifting of residence. According to the defendant-wife the shifting was necessitated once because the husband desired so and on two other occasions due to increase in rent demanded by the landlord and absence of sufficient quantity of water to the rented premises. Neither the family members of the plaintiff nor the landlords and neighbours of the tenanted premises were examined, and as rightly held by the courts below, there is no evidence adduced by the plaintiff to substantiate this allegation. 12. The next instance alleged by the plaintiff-husband is that the defendant-wife used to abuse him as ‘Dhobi’ and the son as ‘Dhobi’s son’ and such utterances had adverse effect on them. PW1, plaintiff and PW2, the son have stated so in their testimonies. Of course the defendant-wife has specifically denied the said allegation. PW2, the child, when examined in September, 2007 in the court was 11 years old and was studying in 6th class. On the date of alleged desertion in 2003 he was only about 7 years old. Prior to 2003 he was an infant and it is unlikely he would remember in detail his early life. Even if the version of the child that the mother used to call him Dhobi’s son is accepted, such scolding is the common reaction to discipline him and it denotes lack of culture on the part of the mother. 13. It is further alleged that the defendant-wife was reluctant to do any household work and was not cooking food for the plaintiff and the child which necessitated the bringing of food from outside, amounting to mental cruelty. Being working mother, she could not spare enough time to be with the child resulting in the feeling of not being cared for. In this context it is relevant to point out that the child was residing with his father since alleged separation in 2003. The expression of the child is due to attitudinal problem and it can be addressed to. The trial court placed much reliance on the testimony of the child and the High Court termed it as misplaced. The learned counsel for the appellant found fault with the High Court in not placing reliance on the child testimony. We are not able to appreciate this contention. In the facts of the case we are of the considered view that the High Court has rightly done so. 14. The next instance is the allegation made by the wife in the case filed by her under Section 498-A of IPC against the husband. Admittedly the case was withdrawn by the wife and she continued to live with the husband. In fact the High Court has observed in the impugned judgment that though the date of filing of the criminal complaint is not mentioned in the plaint, from the sequence of narration of events therein it appears to have been filed prior to the birth of the child. The aberration on the part of the wife has been condoned by the husband by resuming cohabitation and they continued to live together till the date of alleged separation in 2003.15. The last instance of cruelty alleged by the husband is the allegation made by the wife that he has been involved in an extra marital affair with the daily rated mazdoor lady working under him. It is true that the defendant-wife has named the said lady with whom her husband allegedly was having an affair. The plaintiff-husband though admitted that the said lady was working under him, has specifically denied the said allegation. The courts below have concurrently found that the wife has not substantiated the said allegation. Mere failure to prove such allegation would not entitle the husband to a decree of divorce as rightly held by the High Court. The conduct of the wife that had been complained of appears to be not so grave and weighty that it can be treated to be more serious than ordinary wear and tear of married life.16. What remains to be considered is the ground of desertion alleged by the plaintiff-husband, it is averred that the defendant-wife left the company of the plaintiff in March, 2003 and date is not mentioned. The child was only 7 years old in 2003 and his testimony in this regard will not advance the case of the plaintiff. DWs 2 to 4 have testified that they had seen the plaintiff and the defendant together as spouses even during 2005. It is pointed out that there is no denial against such contention in cross examination. It is relevant to point out that DW2 is working in Marine Department and DW3 and DW4 are working in the Municipal Council and there is no reason for them to falsely depose against the plaintiff. The trial court has not indicated with any clarity in its judgment as to how the testimonies of the above witnesses were not found reliable by it. The High Court on going through their testimonies has concluded that it does not find their evidence unworthy of credence. We are in agreement with the said view expressed by the High Court. Resultantly the ground of desertion alleged is also not established.17. We also find no merit in the contention of the learned counsel for the appellant that the marriage between the plaintiff and defendant has irretrievably broken down.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of ‘mentalcan be drawn and they are only illustrative and not exhaustive.11. The plaintiff-husband alleged that after their marriage the defendant-wife did not like to live in the joint family and that led to shifting to separate residence and even there due to quarrels, the wife had with the respective landlords and neighbours, there was frequent shifting of residence. According to the defendant-wife the shifting was necessitated once because the husband desired so and on two other occasions due to increase in rent demanded by the landlord and absence of sufficient quantity of water to the rented premises. Neither the family members of the plaintiff nor the landlords and neighbours of the tenanted premises were examined, and as rightly held by the courts below, there is no evidence adduced by the plaintiff to substantiate this allegation.The next instance is the allegation made by the wife in the case filed by her under Section 498-A of IPC against the husband. Admittedly the case was withdrawn by the wife and she continued to live with the husband. In fact the High Court has observed in the impugned judgment that though the date of filing of the criminal complaint is not mentioned in the plaint, from the sequence of narration of events therein it appears to have been filed prior to the birth of the child. The aberration on the part of the wife has been condoned by the husband by resuming cohabitation and they continued to live together till the date of alleged separation in 2003.15. The last instance of cruelty alleged by the husband is the allegation made by the wife that he has been involved in an extra marital affair with the daily rated mazdoor lady working under him. It is true that the defendant-wife has named the said lady with whom her husband allegedly was having an affair. The plaintiff-husband though admitted that the said lady was working under him, has specifically denied the said allegation. The courts below have concurrently found that the wife has not substantiated the said allegation. Mere failure to prove such allegation would not entitle the husband to a decree of divorce as rightly held by the High Court. The conduct of the wife that had been complained of appears to be not so grave and weighty that it can be treated to be more serious than ordinary wear and tear of married life.16. What remains to be considered is the ground of desertion alleged by the plaintiff-husband, it is averred that the defendant-wife left the company of the plaintiff in March, 2003 and date is not mentioned. The child was only 7 years old in 2003 and his testimony in this regard will not advance the case of the plaintiff. DWs 2 to 4 have testified that they had seen the plaintiff and the defendant together as spouses even during 2005. It is pointed out that there is no denial against such contention in cross examination. It is relevant to point out that DW2 is working in Marine Department and DW3 and DW4 are working in the Municipal Council and there is no reason for them to falsely depose against the plaintiff. The trial court has not indicated with any clarity in its judgment as to how the testimonies of the above witnesses were not found reliable by it. The High Court on going through their testimonies has concluded that it does not find their evidence unworthy of credence. We are in agreement with the said view expressed by the High Court. Resultantly the ground of desertion alleged is also not established.17. We also find no merit in the contention of the learned counsel for the appellant that the marriage between the plaintiff and defendant has irretrievably broken down.