Rajasthan High Court - Jaipur

Ashok Kumar vs Smt Jyoti on 31 January, 2017

Author:
Chief Justice

Bench:
Chief Justice

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 2347 / 2014

Ashok Kumar S/o Shri Mahendra Prasad, Age 31 years, Caste Koli,
R/o H.No.553/32, Jawahar Jadugar, Ajmer.
---- Appellant
Versus
Smt Jyoti W/o Shri Ashok Kumar, D/o Shri Govind Prasad, Caste
Koli, R/o 1290/32, Rambagh, Bhagwangunj, Ajmer.
---- Respondent

_____________________________________________________
For Appellant(s) : Mr. Rahul Agarwal
For Respondent(s) : Mr. Jai Prakash Gupta
_____________________________________________________
HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE VIJAY KUMAR VYAS
Order on Board
Per Hon'ble The Chief Justice
31/01/2017

The Appellant assails order dated 19.05.2014 of the

Family Judge, Ajmer dismissing Matrimonial Case No.480/2011

declining to grant divorce on grounds of cruelty under
Section

13(1)(ia)
of the Hindu Marriage Act, 1955 (hereinafter referred to

as 'the Act').

Learned Counsel for the Appellant submits that it was a

marriage by mutual choice on 08.08.2007. A girl child was born on

06.01.2009 who is presently residing with the Respondent. The

cruel conduct of the Respondent is apparent from her behaviour

on 03.04.2011 when she misbehaved with the Appellant and his

mother after they returned at 10.00 pm having met their sister for
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[CMA-2347/2014]

which the Appellant had also lodged a report before the Alwar

Gate Police and matters were pacified only after their intervention.

The Respondent permanently left the matrimonial home on

21.04.2011. The divorce case was filed by the Appellant on

25.08.2011. The Respondent in retaliation filed a criminal

complaint under
Section 498A
IPC against the Appellant and his

parents. While the latter were granted anticipatory bail the

Appellant had to undergo imprisonment for approximately one

week. The trial is still pending which the Respondent actively

pursues.
The Family Judge had completely erred in appreciation of

evidence and connotation of the word "cruelty" in a matrimonial

relationship by holding that the behaviour of the Respondent

merely constituted normal skirmish of any married life. The threat

of committing suicide and deliberate consumption of phenyl are

but proof of cruelty. Merely because there may have been no

direct evidence in support of the allegations for consumption of

phenyl, was not sufficient ground to disbelieve it especially when it

was pleaded and stated in his examination-in-chief but no

question was asked in cross examination in this regard. The

institution of a false criminal case also constitutes cruelty for

which reliance was placed on
K. Srinivas Rao Vs. D A Deepa
,

(2013) 5 SCC 226.

The Respondent had levelled wild allegations of the

Appellant having illicit relations with an office colleague Nirmala.

This allegation per se casting a slur on the character, integrity and

morality of a married man constitutes cruelty without further

more. The Family Judge committed an error of record in holding
(3 of 14)
[CMA-2347/2014]

that no name of the female colleague had been mentioned by the

Appellant even though the Respondent had disclosed the name in

her additional pleas. Forcing the Appellant to have his separate

hearth, home and kitchen from his other family members while

living in the same house is further evidence of cruelty. The

Respondent in her written statement alleges that the occurrence

of 03.04.2011 was a figment of imagination while in her evidence

she admits the occurrence and wishes it away as normal ups and

downs of a married life. The Respondent in her examination-in-

chief has herself deposed that relations between them soured as

far back as 2010 on account of the allegations of suspected

relations between the said Nirmala and the Appellant. The Family

Judge erred in not appreciating that it is the quality of evidence

and not quantity which matters. If the evidence led by the

Appellant and AW-2, Pavnesh established cruelty, the fact that the

Appellant may not have examined his mother and brother was

irrelevant. The presumption by the Family Judge that they would

have been the best evidence is completely fallacious. The Family

Judge has himself observed that there were inherent

contradictions in the evidence of the Respondent yet holds the

Appellant cannot derive any advantage from the same. If the

Appellant had established cruelty in behaviour, the contradictions

in the evidence of the Respondent became important.
In support

of the submission that threats to commit suicide and allegations of

having illicit relations outside the marriage also constituted cruelty

reliance was placed on
Narendra Vs. K. Meena
, (2016) 9 SCC 455.

(4 of 14)
[CMA-2347/2014]

Learned Counsel for the Respondent did not dispute the

fact that pursuant to the criminal prosecution, the Appellant was

taken into custody but for one or two days only. The Respondent

never made any allegations of illicit relations or adulterous

behaviour against the Appellant. Her allegations that the Appellant

would have long conversations with the office colleague Nirmala

may be suggestive of possessive behaviour but cannot constitute

cruelty. It was denied that the Appellant was ever pressed to live

separately from his parents. The Family Judge has rightly

disbelieved the allegations of the Respondent having consumed

phenyl, vomited and refused to go for medical treatment as there

was no evidence in support of the same. The parties had married

of their own choice. The marriage worked well from 2007 to 2011.

The first occurrence was on 03.04.2011. The Appellant alleges

that the Respondent left the matrimonial home on 21.04.2011 but

it is his own case that on 15.04.2011 he had approached the local

police with a complaint. It is indeed surprising that he was

complaining to the police against his own wife who was still living

with him till then, which on the contrary constitutes cruelty

towards the Respondent.

It was lastly submitted that if demands for dowry had

been made and a criminal case under 498A
IPC
had been lodged

which is still pending trial, it cannot be said at this stage per se

that lodging of the case constituted cruelty. Whether it would

amount to cruelty or not would depend upon the ultimate outcome

of the trial. If the Appellant and his family members are honorably

acquitted, the matter would be different from a case of acquittal
(5 of 14)
[CMA-2347/2014]

on grounds of benefit of doubt.

We have considered the submissions on behalf of the

parties, perused the materials and evidence on record.

The marriage between the Appellant and the

Respondent was solemnized as per their own individual choice for

each other on 08.08.2007. The evidence also reveals that there

was some opposition to it from the Respondent's mother. The

relationship and behaviour of the Appellant and the Respondent

naturally had to be different when they were courting and wooing

each other as undoubtedly both of them would have been on their

best behaviour to impress the other that they were the ideal life

partner. Both the Appellant and the Respondent are

Postgraduates. After matrimony, the relationship and behaviour

undergoes a complete metamorphosis as the parties start to live

under one roof. At this stage, as part of normal human behaviour,

individual choices and expectations start surfacing involuntarily as

a reflection and manifestation of the individual personality.

A marriage has to worked upon to make it successful

and neither spouse can take the other for granted. But it is not

every conduct in a matrimonial relationship which will constitute

cruelty. There may be instances of incompatibility, need for

adjustment with each other and at times there may also be need

to overlook the faults of each other for an enduring long term

relationship. Differences in thinking and behaviour by itself cannot

be said to constitute cruelty. Likewise the expectation of a spouse

that the other alone must show accommodation and adjustment

also cannot constitute cruelty by itself.

(6 of 14)
[CMA-2347/2014]

Cruelty finds no definition in the Act. Its meaning and

connotation cannot be decided and considered in the abstract but

will have to be deciphered in the facts of each case. Cruelty in

behaviour essentially means a conduct of a nature in personal

relations which is of such a character, magnitude and recurrence

making it not merely difficult but impossible for one spouse to live

day to day with the other. In other words, it not only creates a

fear of harm physically but causes such mental stress and agony

that it shatters the personality morale and humanity of the other

spouse. It has its impact on the mental state of the other spouse

creating a sense of abhorrence, fear and not simply an inability to

co-exist with each other. Any marriage would have differences of

opinion, thinking and behaviour. Such conduct would not by itself

tantamount to cruelty. While a single instance of cruelty may be

sufficient in certain situations, in others, it may be a course of

conduct which creates and constitutes cruelty. It is therefore not

possible to give it a precise definition.
In (1975) 2 SCC 326

(
N.G.Dastane (Dr.) v. S.Dastane
), it was observed:-

"34......In many marriages each party can, if it so
wills, discover many a cause for complaint but such
grievances arise mostly from temperamental
disharmony. Such disharmony or incompatibility is not
cruelty and will not furnish a cause for the dissolution
of marriage. We will therefore have regard only to
grave and weighty incidents and consider these to find
what place they occupy on the marriage canvas......"

In (2007) 4 SCC 511 :
Samar Ghosh Vs. Jaya Ghosh
dealing with

the term mental cruelty it was observed as follows:-

"98. On proper analysis and scrutiny of the judgments of
this Court and other Courts, we have come to the definite
conclusion that there cannot be any comprehensive
(7 of 14)
[CMA-2347/2014]

definition of the concept of 'mental cruelty' within which
all kinds of cases of mental cruelty can be covered. No
court in our considered view should even attempt to give
a comprehensive definition of mental cruelty.

99. 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
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
beliefs, human values and their 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 be any
strait-jacket 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
taking aforementioned factors in consideration.

101. No uniform standard can ever be laid down for
guidance, yet we deem it 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.

(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.

(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
(8 of 14)
[CMA-2347/2014]

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 or
deriving sadistic pleasure can also amount to mental
cruelty.

(viii) The conduct must be much more than jealousy,
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 a 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 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."

(9 of 14)
[CMA-2347/2014]

The Appellant alleged that the everyday behaviour of

the Respondent was cruel with a tendency to pick up fights for no

rhyme or reason. She leveled unsubstantiated allegations of

extramarital affair against the Appellant. It is difficult to accept it

as simply possessive behaviour. The impact of the allegation and

its manner made has to be considered not from others point of

view but as understood by the aggrieved spouse dependent on the

kind of society and strata that they belonged to. In a normal

Indian society if one spouse were to allege that the other spouse

appeared unnecessarily close another member of the opposite

sex, it naturally has connotations of infidelity in the marriage. On

one occasion the Respondent had attempted to cut her veins and

commit suicide which caused gross fear and apprehension in the

mind of the Appellant. She would threaten to implicate him and

his family in false cases and ruin their lives. The Respondent

would pressurise him to separate in hearth and home from his

family. The allegation of misbehaviour on 03.04.2011 at about

10.00 pm was made compelling the Appellant to approach the

Alwar Gate Police when matters were pacified. The Respondent on

one occasion after abusing and threatening to commit suicide,

consumed phenyl and her life was saved by forcing her to vomit.

In his evidence in chief, the Appellant deposed that she

would invariably threaten to involve them in a dowry case as also

the phenyl incident. While returning from the Ganesh Temple, she

tried to jump off a motorcycle. She would vent her anger at the

minor child. On 03.04.2011 she had banged her head on the wall
(10 of 14)
[CMA-2347/2014]

at 10.00 pm and because of the commotion people of the locality

assembled which finds corroboration from the evidence of AW-2,

Pavnesh. The Respondent then left the matrimonial home with

Pintu, the son of the uncle of the Appellant. In cross examination,

the Respondent did not ask any questions with regard to the

phenyl incident, her banging her head on the wall, threats to

commit suicide and implicate them in false cases much less give

any suggestion that the Appellant was deposing falsely.

The Respondent in her examination-in-chief

acknowledged that it was a marriage by individual preference for

each other and that relations between them did see normal

skirmishes after the marriage. The birth of the daughter on

06.01.2009 and the function in respect of the same on 09.02.2009

was not disputed. Relations between them got soured the same

day but they continued to live as man and wife. According to the

Respondent the relationship really got soured in 2010 when the

Appellant's office colleague started to frequently call him. Despite

her allegation that she would be beaten up, neither in her

pleadings nor evidence was there any material with regard to any

specific date of occurrence or manner of assault and by whom it

was except omnibus statements. She acknowledges that she did

not complain to anyone or lodge a police case when the

Appellant's younger brother Pappu had allegedly beaten her.

Reiterating that she was desirous to revive the matrimonial

relationship she acknowledged that the function of 09.02.2009

was organized by the Appellant and his family members when her

father had chided the Appellant that he should have been hosting
(11 of 14)
[CMA-2347/2014]

the function with his own money rather than that of his parents.

If the parties were married in 2007 on account of love

for each other, it is difficult to understand and appreciate how

demands for dowry surfaced four years later suddenly and that

too after the Appellant lodged the divorce case. There is no

material on record with regard to any event or occurrence

concerning dowry prior to the same except omnibus allegations. If

the allegations were true the Respondent could undoubtedly have

led the evidence of her own family members in support of the

same. In cross examination she acknowledged in general terms

that the mother of the Appellant assaulted her only on 03.04.2011

but without any further details of the same.

The question that arises for our consideration is if the

conduct of the Respondent will constitute the daily skirmish of a

married life with differences of opinion and individuality requiring

compromise and adjustment between the spouses or does it go

beyond the realm of the same to constitute cruelty as defined by

judicial precedents in a matrimonial relationship. There can be no

two opinions that for a spouse to cast aspersions of infidelity on

the other spouse and a slur on his integrity suggesting he was

having an extramarital affairs outside the marriage will

undoubtedly constitute cruelty. Similarly to threaten suicide, cut

her own vein, consume phenyl and ask the Appellant to separate

in hearth and home from his parents will undoubtedly constitute

cruelty. The act of banging her head on the wall at night leading to

the neighbours assembling are all but evidence of cruelty. It is the

cumulative effect of the behaviour which will form the test and not
(12 of 14)
[CMA-2347/2014]

as isolated incidents. We have therefore no hesitation in holding

that the conduct of the Respondent undoubtedly constituted

cruelty as it had the effect of tarnishing not only the Appellant's

own self esteem, devotion to the family but also could have ruined

his reputation in public.

We regret our inability to concur with the submission

that so long as the criminal trial is pending and the matter is

subjudice, it would not constitute cruelty. The manner and time

when the allegations came to be made combined with the parents

of the Appellant having to take anticipatory bail and the Appellant

having had to undergo custody do constitute acts of cruelty.

In
K. Srinivas Rao
(supra), relied upon by the

Appellant, the following observations are considered relevant in

the facts of the present case:-

"14. in Vijay kumar Bhate disgusting accusations
of unchastity and indecent familiarity with a neighbour
were made in the written statement. This Court held
that the allegations are of such quality, magnitude and
consequence as to cause mental pain, agony and
suffering amounting to the reformulated concept of
cruelty in matrimonial law causing profound and
lasting disruption and driving the wife to feel deeply
hurt and reasonably apprehend that it would be
dangerous to live with her husband.

16. Thus, to the instances illustrative of mental cruelty
noted in Samar Ghosh, we could add a few more.
Making unfounded indecent defamatory allegations
against the spouse or his or her relatives in the
pleadings, filing of complaints or issuing notices or
news item which may have adverse impact on the
business prospect or the job of the spouse and filing
repeated false complaints and cases in the court
against the spouse would, in the facts of a case,
amount to causing mental cruelty to the other spouse.

(13 of 14)
[CMA-2347/2014]

In
Narendra Vs. K. Meena
(supra), allowing the appeal

it was held that threats of suicide by the wife would definitely

constitute cruelty ruining the sanity, peace of mind, career of the

other spouse with its attendant legal consequences causing

tremendous stress which itself was distressing.

Likewise any pressure to live separate in her hearth

and home from the family upon the husband would also constitute

cruelty. Similarly, the allegations of an extramarital affair

unsubstantiated pertaining to one's character was torturous and

did constitute cruelty.

The Family Judge grossly erred in appreciation of

evidence and without proper analysis of the case put forth by the

Appellant posed to himself a wrong question with regard to

withholding of best evidence by failure to lead evidence of the

mother and brother of the Appellant to arrive at a faulty

conclusion of unsubstantiated allegations. The conclusion that the

contradictions in the evidence of the Respondent were

inconsequential is clearly unsustainable in the facts and

circumstance of the case. The finding that the behaviour of the

Respondent constituted only normal skirmish and ups and downs

of a married life is also clearly unsustainable in law.

The application under
Section 24
of the Act filed during

the pendency of the appeal looses its relevance now without

prejudice to the rights of the Respondent in accordance with law.

(14 of 14)
[CMA-2347/2014]

Resultantly, the order under appeal dated 19.05.2014

is set aside and the appeal is allowed.

(VIJAY KUMAR VYAS)J. (NAVIN SINHA)C.J.

KKC/6

AFR