Tobacco Addiction not a ground for seeking divorce: Bombay High Court

 on 12 02 2021 on 19 02 apl 70 16(j).odt 1 9 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH NAGPURFAMILY COURT APPEAL NO. 70 OF 2016 Shri Shankar S o Haridasji Gajbhiye Aged about 37 Years Occ.: Service R o Pawanputra Nagar Dighori Behind P.M.B.S. College Nagpur : APPLICANT...VERSUS... Sau. Rina W o Shankar Gajbhiye C o Shri Pandhari Zambandhu Aged about 33 Years Occ. Household R o Bhankheda Near Library & Ekbal S.T.D. Kabrasthan Road Nagpur 440 017 : RESPONDENT= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Shri D.R.Khandare Advocate for the applicant.Shri N.M. Kolhe Advocate for the respondent.= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = CORAM : A.S.CHANDURKAR & PUSHPA V. GANEDIWALA JJ. DATE : 10th FEBRUARY 2021.JUDGMENT of the HinduMarriage Act 1955 came to be dismissed. on 12 02 2021 on 19 02 apl 70 16(j).odt 2 9 2.The marriage between the appellant husband and therespondent wife was solemnised on 15 06 2003 at Nagpur as per theBuddhist rites and rituals. Out of the said wedlock the couple is blessedwith one son and one daughter. The daughter is in the custody ofappellant husband while the son is with the respondent wife. Theappellant husband sought divorce on the ground of cruelty. The factswith regard to cruelty as pleaded in his petition are as under :i.Respondent wife was not doing any household work properly.She used to quarrel with the appellant husband and his familymembers without any reason.ii.She used to visit her parental home without his permission andused to stay there for 15 30 days.iii.She was addicted to chewing tobacco and therefore she haddeveloped a cyst in her stomach. The appellant husband had toincur huge medical expenses for her treatment.iv.She was insisting for separate residence from the family of theappellant husband and therefore a house was purchased atDighori Nagpur. Despite this the respondent wife could notchange her behavior and she continued to visit her parentalhouse.v. She used to do household work in midnight. She was notpreparing tiffin box at proper time. vi.Lastly on 17 01 2012 she left the company of theappellant husband as she was not interested to cohabit withhim. on 12 02 2021 on 19 02 apl 70 16(j).odt 3 9 3.Appellant husband further states that in order toresume the cohabitation on 13.02.2012 he issued a legal notice tothe respondent wife. However she neither replied the said notice nor showed her inclination to resume cohabitation and hence hewas constrained to file a divorce petition on the ground of cruelty.4.The respondent wife in her written statement deniedall the adverse allegations of cruelty pleaded by theappellant husband. In her specific pleading the respondent wifepleaded about some instances of mental and physical harassmentmeted out to her at the hands of the appellant husband and hermother in law. She stated that her mother in law was quarrelingwith her and was doubting her character. She also madeallegations with regard to demand of two wheeler from her parentsby the appellant husband and on that count he gave beating toher. She also pleaded one incident of police complaint by her andthe settlement between the parties before the Mahila Cell atPanchpaoli Police Station and that the appellant husband hadgiven assurance of good treatment to her.5.The respondent wife further alleged that in the year2008 even though the appellant husband was suffering from thedisease H.I.V. she did not leave his company. However as she was on 12 02 2021 on 19 02 apl 70 16(j).odt 4 9 receiving continuous ill treatment at the hands of her in laws shewas constrained to leave the company of the appellant husband.6.The learned trial Court framed necessary issues andrecorded oral and documentary evidence as adduced by the parties.The appellant husband examined himself and two more witnessesi.e his mother and brother while respondent wife examined herselfonly.7.After hearing both the parties the learned trial Courtdismissed the petition for divorce as in the opinion of the trialCourt the appellant husband could not prove the cruelty at thehands of the respondent wife as contemplated in law. Thisjudgment is impugned in this appeal.8.We have heard Shri D.R.Khandare learned counsel forthe appellant husband and Shri N.M.Kolhe learned counsel forthe respondent wife.9. Shri Khandare learned counsel for the appellant husband submitted that the learned Family Court has not considered thepleadings and the evidence on record in its correct perspective.According to him the Family Court has failed to consider the ill treatment subjected to him by the respondent wife and the falseallegations against the appellant husband and his family members on 12 02 2021 on 19 02 apl 70 16(j).odt 5 9 amounts to mental cruelty. He further submitted that the learnedFamily Court has ignored the bad habits of the respondent wife and also not considered that she was not doing household workproperly and used to quarrel with the appellant husband and hisfamily members. Lastly he urged to allow the appeal in the interestof justice.10.Per contra Shri Kolhe learned counsel for therespondent wife supported the judgment and decree of the trialCourt and submitted that the learned trial Court while dismissingthe petition has properly appreciated the evidence on record andthat the appellant husband could not make out a case to interferewith the well reasoned judgment of the Court below.11.We have considered the submissions put forth on eithersides and perused the record.12. The following point arose for consideration of this Court:“Is the appellant husband is entitled for grant ofdecree of divorce on the ground of cruelty ”.13.At the outset the appellant husband has sought divorceon the ground of mental cruelty. Before adverting to examine theevidence on record to assess as to whether the appellant husbandcould make out a case of mental cruelty it would be advantageous on 12 02 2021 on 19 02 apl 70 16(j).odt 6 9 to refer to one of the landmark judgments of the Hon’ble ApexCourt in the case of Samar Ghosh vs. Jaya Ghosh reported in(2007) 4 SCC 511 wherein their Lordships have enumerated someinstances of mental cruelty. The relevant portion in para no. 101 inthe said judgment is reproduced below:"101. No uniform standard can ever be laid down for guidance yet we deem it appropriate to enumerate some instances ofhuman behavior which may be relevant in dealing with the casesof "mental cruelty". The instances indicated in the succeedingparagraphs are only illustrative and not exhaustive:(i) On consideration of complete matrimonial life of theparties acute mental pain agony and suffering as wouldnot make possible for the parties to live with each othercould come within the broad parameters of mentalcruelty.On comprehensive appraisal of the entirematrimonial life of the parties it becomes abundantlyclear that situation is such that the wronged party cannotreasonably be asked to put up with such conduct andcontinue to live with other party.Mental cruelty is a state of mind. The feeling of deepanguish disappointment frustration in one spousecaused by the conduct of other for a long time may leadto mental cruelty.A sustained course of abusive and humiliatingtreatment calculated to torture discommode or rendermiserable life of the spouse.Mere trivial irritations quarrels normal wear andtear of the married life which happens in day to day lifewould not be adequate for grant of divorce on theground of mental cruelty.The married life should be reviewed as a whole anda few isolated instances over a period of years will notamount to cruelty. The ill conduct must be persistent fora fairly lengthy period where the relationship hasdeteriorated to an extent that because of the acts andbehaviour of a spouse the wronged party finds itextremely difficult to live with the other party anylonger may amount to mental cruelty. on 12 02 2021 on 19 02 apl 70 16(j).odt 7 9 14. A careful perusal of the pleadings and the evidence insupport as adduced by the appellant husband would at oncereveal that the allegations with regard to cruelty as set out by theappellant husband are nothing but the normal wear and tear inmarried life. The couple lived together for around 9 years and theappellant husband could not bring on record specific instances ofmental harassment to enable this Court to adjudicate the case ofmental cruelty in favour of the appellant husband. The allegationsthat she was not doing household work quarreling with his familymembers without any reason visiting her parental home withouthis permission not preparing his tiffin etc. in the considered viewof this Court are not sufficient to form any opinion that theappellant husband is undergoing acute mental pain agony suffering disappointment and frustration and therefore it is notpossible for him to live in the company of the respondent wife. Allthe allegations levelled by the appellant husband are general andomnibus in nature. The major allegation amongst them is withregard to her habit of chewing tobacco kharra which alone is notsufficient to grant a decree of divorce. On the contrary theappellant husband has admitted that in the year 2008 he wasdetected with HIV positive and the respondent wife stayed withthe appellant husband till 2010. The instances of physical and on 12 02 2021 on 19 02 apl 70 16(j).odt 8 9 mental harassment as pleaded and proved by the respondent wife is on the better footing than the appellant husband.15.It is the specific allegations of appellant husband thatsince the respondent wife was having a habit of chewing tobacco he was required to spend lot of money for her medical treatment.However the learned trial Court has rightly observed that he failedto bring on record the medical papers and bills in support of thispleading.16.The Division Bench of this Court in the case of SanjanaSandip Pednekar Vrs. Sandip Sitaram Pednekar reported in2014(3) Mh.L.J 781 with regard to cruelty has observed that themarried life should be assessed as a whole and a few isolatedinstances over certain period will not amount to cruelty. It is furtherobserved that the ill conduct must be preceded for a fairly lengthyperiod where the relationship has deteriorated to an extent thatbecause of the acts and behaviour of a spouse one party finds itextremely difficult to live with the other party no longer mayamount to mental cruelty and mere trivial irritations quarrels normal wear and tear of married life which happens in day to daylife in all families would not be adequate for grant of divorce on theground of cruelty. on 12 02 2021 on 19 02 apl 70 16(j).odt 9 9 17.Apart from this it is rightly held by the learned trialCourt that the pleadings of the appellant husband are not so graveand weighty so as to dissolve the marriage. The learned trial Courthas rightly observed that the parties have two children and if themarriage is dissolved the children would suffer a great loss andtheir welfare will affect and in the best interest of daughterBhumika and son Akash the marital tie shall remain intact.18.In the given facts we are of the opinion that no case ismade out by the appellant husband to disturb the well reasonedfindings of the learned trial Court. The appeal thus being devoid ofmerits deserves to be dismissed and is accordingly dismissed. Theparties to bear their own costs.JUDGE JUDGEsknair 

Summary: Tobacco addiction of spouse will not be considered as a valid ground for seeking a divorce and would not amount to mental cruelty. The Bombay High Court bench consisting of Hon’ble Justice Pushpa V. Ganediwala and Justice A.S Chandurkar gave the decision by stating the above-cited reasons in the case of Shri Shankar vs. Rina [Family Court Appeal no. 70 of 2016].  In the instant case, an appeal was filed by the appellant-husband challenging the judgment of the family trial court which had quashed his appeal for a decree of divorce on the grounds of cruelty u/s 13(1)(i-a) of the Hindu Marriage Act, 1955. Both the appellant and the respondent married each other on 15-6-2003 and had two kids out of wedlock. The appellant-husband had filed a petition in the trial court for seeking divorce on the ground of cruelty. He mentioned that his wife used to eat tobacco because of which a cyst developed in her stomach resulting in huge expenses for the treatment. The appellant-husband also mentioned that the respondent used to avoid the household work and never took care of the family. On the contrary, the respondent-wife alleged that the husband and his mother used to harass her mentally and physically. She also made allegations of dowry on the appellant and his family. Considering all the facts and the evidence, the trial court had dismissed the appeal of the husband for seeking divorce as he could not prove cruelty against him in the court. In the High Court, the appellant counsel argued that the family court didn’t consider the ill-treatment subjected to the appellant by the respondent/wife and the false allegations against the appellant/husband which amounted to mental cruelty. He further submitted that the learned Family Court ignored the bad habits of the respondent/wife while dismissing the appeal. While referring to the judgment of Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511], the High Court came to the conclusion that the cruelty suffered by the appellant was normal wear tear of the married life. The High Court bench stated that “The allegations that she was not doing household work, quarreling with his family members without any reason, visiting her parental home without his permission, not preparing his tiffin, etc., in the considered view of this Court, are not sufficient to form an opinion that the appellant/husband is undergoing acute mental pain, agony, suffering, disappointment, and frustration”.