Punjab-Haryana High Court

Pratham Singh vs Rajesh on 3 December, 2014

Equivalent citations: AIR 2015 (NOC) 492 (P.&H.)

Author:
Ajay Kumar Mittal

Bench:
Ajay Kumar Mittal

FAO-M-347 of 2013 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO-M-347 of 2013

Date of decision: 3.12.2014

Pratham Singh
,,Appellant
Vs.

Rajesh
,..Respondent

CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MRS. JUSTICE SNEH PRASHAR

Present: Mr. Vikas Kumar, Advocate for the appellant.
Mr. Shiv Kumar, Advocate for the respondent.

Ajay Kumar Mittal,J.

1. This appeal has been preferred by the appellant - husband

against the judgment and decree dated 3.10.2013 passed by the trial

court, whereby the petition filed by him under
section 13
of the Hindu

Marriage Act, 1955 (in short, "the Act") for dissolution of marriage on the

grounds of cruelty and desertion has been dismissed.

2. A few facts relevant for the decision of the controversy

involved as available on the record may be noticed. Marriage between

the parties was solemnized on 8.7.1992 according to Hindu rites and

ceremonies. The appellant was under JBT training from 28.9.1992 to

July 1994 and came into government job on 14.10.1995. No issue was

born out of the said wedlock. The parties lastly resided together as

husband and wife at the house of the appellant at Aurangabad. The

marriage was simple. From the very beginning, behaviour of the

respondent was not good towards the appellant and his family members.

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She was interested to live in her parental house. The appellant is

M.A.B.Ed and physically handicapped person. The respondent never

liked him and disregarded him. She also wanted to live separately with

the appellant from his parents. The appellant even accepted her demand

and started living at house No.756 w.e.f 22.10.1995. Despite that, her

behaviour did not change. She used to curse the appellant to be a

handicapped person. On 18.12.1997, she gave beating to the appellant

with lathi blows. A complaint dated 18.12.1997 was lodged by the

appellant against the respondent. In 1999, the respondent left the

matrimonial home. On the request of the appellant and his family

members, she came back. On 14.10.2000, she again left the

matrimonial home. The appellant felt shocked when he and his family

members were got involved in a false criminal case by lodging FIR dated

27.3.2001 by the respondent under
Sections 498A
,
,
IPC. The

appellant was arrested on 4.4.2001 and remained in jail for four days till

8.4.2001 before getting bail. However, the appellant and his family

members were acquitted vide order dated 28.7.2010 by the trial court.

The appeal filed by the respondent against acquittal was also dismissed.

She filed application under
section 125
Cr.PC for maintenance. She was

granted Rs.3000/- per month as maintenance which was paid by the

appellant regularly. The respondent also filed complaint under
sections
/
IPC against the appellant and his family members which was

also dismissed. Ultimately, the appellant filed petition under
Section 13

of the Act for dissolution of marriage on the grounds of cruelty and

desertion. Upon notice, the respondent appeared and filed written

statement controverting the averments made in the petition. The trial

court after examining the entire evidence on record dismissed the

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petition vide impugned judgment and decree dated 3.10.2013. Hence

the instant appeal by the appellant husband.

3. We have heard learned counsel for the parties and perused

the record.

4. Learned counsel for the appellant husband submitted that

the trial court erred in law in dismissing the petition under
section 13
of

the Act filed by the appellant. The respondent wife is living separately

since 14.10.2000. No issue was born out of the wedlock. Her behaviour

towards the appellant and his family members was not good from the

very beginning. She had no intention to live with the appellant. She used

to curse the appellant being a handicapped person. The behaviour of the

respondent caused mental cruelty to the appellant. Reliance was placed

on judgments in
Vidhya Vishwanathan vs. Kartik Balakrishnan
, 2014

(4) RCR 563 and Vishwanath Agrawal vs. Sarla Vishwanath Agrawal,

(2012) 7 SCC 288.

In view of pronouncement of the Apex Court in

K.Srinivas Rao vs. D.A.Deepa
, (2013) 5 SCC 226, it was contended

that cruelty was caused by the respondent-wife as false criminal

complaint filed by her against the appellant and his family members had

resulted in their acquittal in proceedings under
section 406
,
498A
,
of

the Indian Penal Code and the appellant is entitled to the grant of

divorce.

5. On the other hand, learned counsel for the respondent

supported the impugned judgment and decree.

6.
Section 13(1)(ia)
of the Act empowers the Court to dissolve

the matrimonial ties between the parties by a decree of divorce on a

petition by either spouse where the said spouse has been treated with

cruelty after the solemnization of the marriage. Cruelty has not been

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defined in the Act but various pronouncements of the Apex Court and

other High Courts have outlined the scope of the term 'cruelty'. Cruelty

is evident where one spouse treats the other and manifests such

feelings towards him or her as to cause reasonable apprehension that it

will be harmful or injurious to live with the other spouse. Cruelty may be

physical or mental. Whether a spouse is inflicted with physical cruelty or

not, it can be judged on the basis of direct evidence whereas mental

cruelty is to be inferred on analyzing the factual matrix of each case and

drawing conclusion thereon.

7. Further, in
Vidhya Vishwanathan
's case (supra), it was

held by the Apex Court as under:-

"13.
In
Vinita Saxena vs. Pankaj Pandit
(2006) 3

SCC 778 regarding legal proposition on aspect of

cruelty has made the following observations:

"31. It is settled by a catena of decisions that

mental cruelty can cause even more serious

injury than the physical harm and create in the

mind of the injured appellant such apprehension

as is contemplated in the section. It is to be

determined on whole facts of the case and the

matrimonial relations between the spouses. To

amount to cruelty, there must be such wilful

treatment of the party which caused suffering in

body or mind either as an actual fact or by way

of apprehension in such a manner as to render

the continued living together of spouses harmful

or injurious having regard to the circumstances

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of the case.

32. The word "cruelty" has not been defined

and it has been used in relation to human

conduct or human behaviour. It is the conduct in

relation to or in respect of matrimonial duties

and obligations. It is a course of conduct and

one which is adversely affecting the other. The

cruelty may be mental or physical, intentional or

unintentional. There may be cases where the

conduct complained of itself is bad enough and

per se unlawful or illegal. Then the impact or the

injurious effect on the other spouse need not be

enquired into or considered. In such cases, the

cruelty will be established if the conduct itself is

proved or admitted."

8. Still further, in Vishwanath Agrawal's case (supra), it was

observed as under:-

"24.
In
Shobha Rani v. Madhukar Reddi
, while

dealing with 'cruelty' under
Section 13(1)(ia)
of the

Act, this Court observed that the said provision does

not define 'cruelty' and the same could not be defined.

The 'cruelty' may be mental or physical, intentional or

unintentional. If it is physical, the court will have no

problem to determine it. It is a question of fact and

degree. If it is mental, the problem presents difficulty.

Thereafter, the Bench proceeded to state as follows:

"4.....First, the enquiry must begin as to the

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nature of the cruel treatment. Second, the

impact of such treatment on the mind of the

spouse. Whether it caused reasonable

apprehension that it would be harmful or

injurious to live with the other. Ultimately, it is a

matter of inference to be drawn by taking into

account the nature of the conduct and its effect

on the complaining spouse. There may,

however, be cases where the conduct

complained of itself is bad enough and per se

unlawful or illegal. Then the impact or the

injurious effect on the other spouse need not be

enquired into or considered. In such cases, the

cruelty will be established if the conduct itself is

proved or admitted."

25. After so stating, this Court observed in
Shobha

Rani
case about the marked change in life in modern

times and the sea change in matrimonial duties and

responsibilities. It has been observed that:

"5.... when a spouse makes a complaint about

treatment of cruelty by the partner in life or

relations, the court should not search for

standard in life. A set of facts stigmatized as

cruelty in one case may not be so in another

case. The cruelty alleged may largely depend

upon the type of life the parties are accustomed

to or their economic and social conditions. It

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may also depend upon their culture and human

values to which they attach importance."

26. Their Lordships in
Shobha Rani
case referred

to the observations made in Sheldon v. Sheldon

(1966) 2 WLR 993, wherein Lord Denning stated, "the

categories of cruelty are not closed".

Thereafter, the

Bench proceeded to state thus: (
Shobha Rani
case,

(1988) 1 SCC 105) SCC p. 109, paras 5-6)-

"5. ......Each case may be different. We deal

with the conduct of human beings who are not

generally similar. Among the human beings

there is no limit to the kind of conduct which

may constitute cruelty. New type of cruelty may

crop up in any case depending upon the human

behaviour, capacity or incapability to tolerate

the conduct complained of. Such is the

wonderful (sic) realm of cruelty.

6. These preliminary observations are

intended to emphasise that the court in

matrimonial cases is not concerned with ideals

in family life. The court has only to understand

the spouses concerned as nature made them,

and consider their particular grievance. As Lord

Ried observed in Gollins v. Gollins, 1964 AC

644:

"....In matrimonial affairs we are not dealing with

objective standards, it is not a matrimonial

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offence to fall below the standard of the

reasonable man (or the reasonable woman).

We are dealing with this man or this woman."

(emphasis in original).

27.
In
V. Bhagat v. D. Bhagat (Mrs.
), (1994) 1 SCC

337, a two-Judge Bench referred to the amendment

that had taken place in
Sections 10
and
13(1)(ia)
after

the Hindu Marriage Laws (Amendment) Act, 1976 and

proceeded to hold that the earlier requirement that

such cruelty has caused a reasonable apprehension

in the mind of a spouse that it would be harmful or

injurious for him/her to live with the other one is no

longer the requirement. Thereafter, this Court

proceeded to deal with what constitutes mental cruelty

as contemplated in
Section 13(1)(ia)
and observed

that mental cruelty in the said provision can broadly

be defined as that conduct which inflicts upon the

other party such mental pain and suffering as would

make it not possible for that party to live with the

other. To put it differently, the mental cruelty must be

of such a nature that the parties cannot reasonably be

expected to live together. The situation 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 was further observed, while arriving at

such conclusion, that regard must be had to the social

status, educational level of the parties, the society

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they move in, the possibility or otherwise of the parties

ever living together in case they are already living

apart and all other relevant facts and circumstances.

What is cruelty in one case may not amount to cruelty

in another case and it has to be determined in each

case keeping in view the facts and circumstances of

that case. That apart, the accusations and allegations

have to be scrutinized in the context in which they are

made. Be it noted, in the said case, this Court quoted

extensively from the allegations made in the written

statement and the evidence brought on record and

came to hold that the said allegations and counter

allegations were not in the realm of ordinary plea of

defence and did amount to mental cruelty.

28.
In
Praveen Mehta v. Inderjit Mehta
, (2002) 5

SCC 706, it has been held that mental cruelty is a

state of mind and feeling with one of the spouses due

to behaviour or behavioural pattern by the other.

Mental cruelty cannot be established by direct

evidence and it is necessarily a matter of inference to

be drawn from the facts and circumstances of the

case. A feeling of anguish, disappointment, and

frustration 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 facts

and circumstances are to be assessed emerging from

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the evidence on record and thereafter, a fair inference

has to be drawn whether the Petitioner in the divorce

petition has been subjected to mental cruelty due to

the conduct of the other.

29 In
Vijaykumar Ramchandra Bhate v. Neela

Vijaykumar Bhate
(2003) 6 SCC 334, it has been

opined that a conscious and deliberate statement

levelled with pungency and that too placed on record,

through the written statement, cannot be so lightly

ignored or brushed aside.

30.
In
A. Jayachandra v. Aneel Kaur
, (2005) 2 SCC

22, it has been ruled that the question of mental

cruelty has to be considered in the light of the norms

of marital ties of the particular society to which the

parties belong, their social values, status and

environment in which they live. If from the conduct of

the spouse, it is established and/or an inference can

legitimately be drawn that the treatment of the spouse

is such that it causes an apprehension in the mind of

the other spouse about his or her mental welfare, then

the same would amount to cruelty. While dealing with

the concept of mental cruelty, enquiry must begin as

to the nature of cruel treatment and the impact of such

treatment in the mind of the spouse.
It has to be seen

whether the conduct is such that no reasonable

person would tolerate it.

31.
In
Vinita Saxena v. Pankaj Pandit
, (2006) 3

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SCC 778, it has been ruled that as to what constitutes

mental cruelty for the purposes of
Section 13(1)(ia)

will not depend upon the numerical count of such

incident or only on the continuous course of such

conduct but one has to really go by the intensity,

gravity and stigmatic impact of it when meted out

even once and the deleterious effect of it on the

mental attitude necessary for maintaining a conducive

matrimonial home.

32.
In
Samar Ghosh v. Jaya Ghosh
, (2007) 4 SCC

511, this Court, after surveying the previous decisions

and referring to the concept of cruelty, which includes

mental cruelty, in English, American, Canadian and

Australian cases, has observed that the human mind

is extremely complex and human behaviour is 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 the

other 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 belief, human values and their

value system. 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

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print and electronic media and value system, etc. etc.

What may be mental cruelty now may not remain

mental cruelty after a passage of time or vice versa.

There can never be 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.

33.
In
Suman Kapur v. Sudhir Kapur
, (2009) 1 SCC

422, after referring to various decisions in the field,

this Court took note of the fact that the wife had

neglected to carry out the matrimonial obligations and

further, during the pendency of the mediation

proceeding, had sent a notice to the husband through

her advocate alleging that he had another wife in USA

whose identity was concealed. The said allegation

was based on the fact that in his income-tax return,

the husband mentioned the "Social Security Number"

of his wife which did not belong to the wife, but to an

American lady. The husband offered an explanation

that it was merely a typographical error and nothing

else. The High Court had observed that taking undue

advantage of the error in the "Social Security

Number", the wife had gone to the extent of making

serious allegation that the husband had married an

American woman whose "Social Security Number"

was wrongly typed in the income-tax return of the

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husband. This fact also weighed with this Court and

was treated that the entire conduct of the wife did

tantamount to mental cruelty."

9.
In
K.Srinivas Rao
's case (supra), similar view was taken.

10. A perusal of the record shows that the marriage of the

appellant with the respondent was solemnized in the year 1992. No

issue was born out of the wedlock. The appellant being a physically

handicapped person, the respondent used to curse him. She never liked

him. She even gave beating to him with lathi. From the very beginning,

her attitude was not good towards the appellant and his family members.

She always wanted to live in her parental house whenever the appellant

was on training. She left the matrimonial home several times and on the

efforts made by the appellant and his family members, she used to come

back. She finally left the matrimonial home on 14.10.2000 and had

deserted the husband. Further, her complaint under
sections 498A
,
,
IPC against the appellant and his family members was dismissed.

Even appeal against the aforesaid order was also dismissed. Her

complaint under
sections 494
/
IPC remained unsuccessful. The trial

court thus was not right in dismissing the petition filed by the appellant

husband. It has been authoritatively held by the Apex Court in
K.

Srinivas Rao
's case (supra) and a Division Bench of this Court in

Imlesh v. Amit
, AIR 2014 Punjab and Haryana 89 that where the wife

files false criminal complaint against the husband and his family

members under
Sections 406
,
498A
of the Indian Penal Code which

results in their acquittal, this act of the wife causes mental cruelty and

the husband is entitled to a decree of divorce under
Section 13(1)(ia)
of

the Act. Considering the overall facts and circumstances of the case, we

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do not find any ground to uphold the findings recorded by the trial court.

As a result, we set aside the impugned judgment and decree dated

3.10.2013. The appeal filed by the appellant stands allowed. The

appellant is granted decree of divorce on the grounds of cruelty and

desertion caused by the respondent-wife.

(Ajay Kumar Mittal)
Judge

December 03, 2014 (Sneh Prashar)
gbs Judge

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