Allahabad High Court

Sanjeev Kumar Singh vs Smt. Poonam Singh on 13 October, 2017

Author:
Suneet Kumar

Bench:
Suneet Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Case :- FIRST APPEAL No. - 624 of 2009

Appellant :- Sanjeev Kumar Singh

Respondent :- Smt. Poonam Singh

Counsel for Appellant :- R.P. Singh,Dharmendra Kumar Tripathi,J.P. Singh

Counsel for Respondent :- D.N. Mishra,Rajiv Lochan Shukla

Hon'ble Suneet Kumar,J.

Plaintiff-appellant by the instant first appeal is assailing the judgement and order dated 29 July 2009, passed by Additional District Judge (Court no.2), Ghazipur, in Matrimonial Case No. 102 of 2004 (
Sanjeev Kumar Singh Vs. Smt. Poonam Singh
), whereby, appellant's matrimonial case for dissolution of marriage on the ground of mental cruelty has been dismissed.

Appellant-husband was married to the defendant-respondent on 10 December 1999 as per hindu custom and rites. After marriage, parties stayed together for two years, thereafter, respondent left the matrimonial home and is residing at her parent's house. The appellant while posted at Baroda (Gujrat), respondent came to stay with the appellant in the rented house, however, she stayed there for 2-3 months, thereafter, left for her parent's house at Ghazipur and since then is residing there. Respondent made false allegation about the conduct of the appellant and lodged false criminal cases, thereby, inflicting cruelty upon the appellant.

The case set up by the respondent is that the appellant was having illicit relation with the daughter of landlord, therefore, appellant sent her to her parent's house. Aggrieved, respondent sent letters complaining about the conduct and character of the appellant to the higher authorities, landlord and her daughter, neighbour, however, appellant failed to mend himself.

The trial court upon considering the pleadings and evidence led by the parties came to the conclusion that the appellant failed to prove that he was subjected to mental cruelty by the respondent, consequently, dismissed the suit.

Learned counsel for the appellant would submit that the respondent admitted in the written statement, as well as, in her testimony that she had written letters making false and slanderous allegation on the character of the appellant, which tarnished his image beyond repair. Further, she lodged false criminal cases against the appellant and opposed the bail application. Appellant had to face ridicule and humiliation at work place and in society. In this backdrop, the allegation of adultery leveled by the respondent against the appellant being not proved, the issue was decided against the respondent, therefore, it is sought to be urged that by writing letters making false allegation would tantamount to mental cruelty. It is urged that trial court committed an error in not dissolving the marriage on the ground of mental cruelty.

Learned counsel for the respondent would submit that respondent stayed with the appellant for almost two years after marriage, however, due to adulterous conduct of the appellant having illicit relationship with the daughter of the landlord, which respondent witnessed on her own, had adversely affected their relationship as man and woman. He would urge that respondent is not prepared for divorce, though would admit that for the past 14 years, respondent and the appellant are living separately and conciliation between the parties has failed.

On rival submissions, the question for determination is as to whether appellant is entitled to divorce on the ground of mental cruelty inflicted upon him by the respondent.

To appreciate the rival contentions, it would be appropriate to examine the pleadings of the respective parties.

Appellant pleaded that he was married to the respondent on 10 December 1999 as per hindu custom and rites; respondent stayed in the matrimonial home for almost two years, thereafter, appellant left for Baroda, where he was posted. At Baroda, appellant was residing in a rented house, where respondent came and stayed for 2-3 months, thereafter, upon her request, appellant sent her back to her parent's house at Ghazipur. It was further contended that respondent is in habit of writing false and malicious letters about the conduct and character of the appellant. Respondent had written several letters to the landlord, her daughter, neighbour and to the higher authorities, including Commanding Officer of the organization, where, the appellant works. The allegation being false and baseless, has seriously damaged the reputation of the appellant. As a consequence of mental cruelty inflicted upon the appellant by the respondent, appellant developed ulcer, finally, had to take treatment in the Military Hospital at Rajkot (Punjab). It is alleged that during treatment, respondent never visited him nor served him as wife when he needed her service the most. After treatment, appellant went to his house at Ghazipur on 11 June 2004, stayed there until 13 July 2004, but despite appellant sending message, respondent did not come, either to meet the appellant nor returned to her matrimonial home. As a consequence of her writing false and malicious letters to higher officials, both the parties were summoned by the Soldier Board at Ghazipur for settlement. It is further alleged that despite settlement being arrived at Soldier Board, respondent never returned to her matrimonial home.

Respondent entered appearance by filing written statement, the factum of marriage is admitted. At Baroda, respondent accompanied the appellant, however, respondent alleged that she saw that her husband is having illicit relationship with daughter of the landlord, which became the cause of friction between the parties. Respondent felt respite when appellant was transferred to Rajkot ( Punjab) realizing that the appellant would get rid of the lady but it is alleged that did not happen.

It is alleged that appellant on vacation, instead of coming home at Ghazipur, would go to Baroda to visit the lady, as a consequence, respondent was compelled to write letters complaining to higher officers about the conduct of the appellant. It is alleged that respondent visited the Military Hospital at Ambala when appellant fell ill, however, he sent her back to Ghazipur.

After institution of divorce suit, respondent instituted a suit under
Section 9
of Hindu Marriage Act (Case No. 73 of 2005) for restitution of conjugal right, it was therefore, pleaded that she is not prepared to divorce her husband. Despite settlement at the Soldier Board, it is alleged that appellant had never visited the home of the respondent nor showed any inclination in taking her to the matrimonial home.

Appellant got himself examined as PW-1, and Balvinder Singh Deol as PW-2; respondent got herself examined as DW-1 and Ajay Vikram Singh as DW-2. The letters written by the respondent making allegation against character of the appellant, medical report and railway ticket were made exhibits.

The trial court upon considering the pleadings of the rival parties; oral, as well as, documentary evidence, framed three issues:

1. whether conduct of the respondent against the appellant amounts to mental cruelty?

2. Whether appellant is leading adulterous life?

3. Relief?

Issue no.1 was decided against the appellant holding that the respondent had not inflicted mental cruelty upon appellant; issue no.2 was decided against the respondent and in favour of appellant holding that the respondent failed to prove that the appellant was leading an adulterous life, consequently, suit was dismissed.

The trial court while deciding first issue noted that it is admitted by the respondent that she visited the rented accommodation at Baroda, where appellant was posted; she stayed there for 2-3 months, thereafter, returned to her matrimonial home. Respondent would urge that since appellant was in illicit relationship with the daughter of the landlord and he continued the relationship, therefore, she had no option but to write letters to various authorities, including the landlord, his daughter, neighbour and several letters were written to the organization where the appellant worked and to higher officers complaining about the conduct and character of her husband.

In her testimony and cross examination, respondent admitted of writing letters, which were made exhibits and proved by the author i.e. respondent. She admitted that she had signed the letters, however, she deposed that mere writing of letters would not tarnish the image of her husband, but it is only upon publication in the news paper. The contents of letter are derogatory, humiliating and directly attacks the character of the appellant. The letters would explicitly state about the alleged relationship of her husband with the daughter of the landlord. But neither in her statement or cross examination nor in the letter, it has been stated as to what she had seen at Baroda which was the foundation of her allegations.

So much so, was the effect of the communications, according to the appellant, that it ultimately tarnished the image of the appellant at his work place. As a result, appellant developed ulcer and was admitted to the Military Hospital, Ambala, for treatment. As a consequence of pressure mounted by the respondent, appellant was summoned by the Soldier Board at Ghazipur for conciliation and settlement between the parties.

It is admitted by the parties that on the intervention of Soldier Board, parties compromised and resolved to live together as man and woman, however, thereafter, the parties did not come together and continued living separately. The settlement before the Soldier Board was made an exhibit.

The trial court rejected the plea of mental cruelty for the reason that the parties had entered into a settlement before the Soldier Board in 2004. The alleged letters written by the respondent making allegations, thereby, tarnishing the character of appellant were written before 2005, therefore, trial court was of the opinion that the letters and allegations made therein would loose its steam for the reason that the appellant in the backdrop of the allegations had agreed to stay with the respondent. Further, since suit was instituted on 12 July 2004 i.e. after the settlement had been arrived between the parties in January before the Soldier Board, therefore, the events prior to the settlement is not of much consequence. The reasoning of the trial court that though certain letters were written after 2005 (Exhibit 38-Ga and 52-Ga) to the Commanding Officer, but as most of the communications are prior to 2004 i.e before the settlement arrived at between the parties, therefore, in the opinion of the Court would not amount to cruel behaviour. Further, had the appellant being aggrieved by the cruel conduct of the respondent, he would not have agreed for settlement before the Soldier Board. The trial court would, however, further note that the respondent in her statement had accepted that after 2005, she had instituted criminal case against the appellant and upon his arrest, bail application was opposed by her before the District Court, as well as, the High Court.

Cruelty has not been defined under the Act, the word has been used in relation to human behaviour and conduct. Ultimately it has to be inferred taking in view the overall conduct and behaviour and its effect upon the complaining spouse.

In
Shobha Rani Vs. Madhukar Reddi1
, Apex Court held as follows:-

"4.
Section 13(1)
(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. 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 of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. .............................................It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in 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."

In
GVN Kameshwara Rao Vs. G. Jabillia2
, the Apex Court held as follows:-

"12. The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter- petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances." (
V. Bhagat Vs. D. Bhagat (Mrs
)3.

The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.
The Hindu Marriage Act
does not define cruelty. It is a course of conduct of one which is adversely affecting the other. (
Vide-Dr. N.G. Dastane v. Mrs. S. Dastane4
)

In
Samar Ghosh Vs. Jaya Ghosh5
, the Apex Court has enumerated instances of cruelty for guidance:

"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)..................................

(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.

(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.

(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)..................

(viii)..................

(ix)....................

(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.

xx xx xx xx

xx xx xx xx

(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." (Refer:
Vishwanath Vs. Sau
. Sarla Vishwanath Agrawal6)

Section 13(1)
(i-a) of the
Hindu Marriage Act
is comprehensive enough to include cases of physical as also mental cruelty. Modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be ascertained from the facts. Though no uniform standard can be laid down for guidance, yet certain instances of human behaviour may be relevant in dealing the cases of 'mental cruelty'.

Having due regard to the admitted facts and testimony of the respondent, it is admitted that the respondent had written letters which were malicious and damaging. The communications seriously tarnished the social image of the appellant not only in the society but at his work place. The allegation primarily against the appellant was of adultery which respondent failed to prove. Merely for the reason that the appellant had appeared before the Soldier Board which is part of the organization where the appellant works, it cannot be said that appellant could ignore the command of his superior to approach the Board for settlement. Even after settlement, respondent admittedly has been writing letters to the Commanding Officer making allegation of character assasination. Thereafter, to perpetuate harassment, false FIR was lodged under
Section 498A
IPC, though admittedly, respondent had not stayed in the matrimonial home for more than two years. At no point of time, prior to 2005, there is any allegation of dowry. Therefore, criminal cases were lodged by the respondent to create problem for the appellant being an employee of a government organization which is fortified by the statement of the respondent that she opposed the bail application of the appellant at district court, as well as, High Court.

Humiliating words were written in the complaints. The fault, if any, lies with the respondent who could not adjust herself with her husband. Instead of making adjustments, she not only raised hue and cry but focused all her attention, energy and time to destroy the appellant's career and reputation completely. Action of the wife making false complaints against her husband to the higher authorities, lodging false first information report with the police, opposing the bail application before the courts, levelling false and fictious allegations, would amount to mental cruelty. The explanation of the wife that she was trying to mend her husband being a concerned wife is nothing but an eye-wash. At no stage, she expressed any regret or remorse. Allegations of very serious nature were made against the working and conduct of husband by calling him a person of loose character having affair with another lady which she failed to establish. The allegations in the opinion of the appellant tantamounts to tarnishing his social reputation and respect and straining the relationship beyond repair.

I am of the considered opinion, a normal reasonable man is bound to feel the sting and pungency of the allegations made by the respondent through her communications. The conduct of the respondent has humiliated the appellant and caused mental cruelty. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious.

In the given facts, testimony and admission of respondent and having due regard that the parties are staying and living separately for the past 14 years, there is no remote possibility of their coming together. Conciliation between the parties has failed. The marriage has become unworkable, emotionally dead, beyond salvage and has broken down irretrievably. Trial court, therefore, committed an error in not dissolving the marriage on the ground of mental cruelty.

The finding returned by the trial court to that effect is accordingly reversed, the appellant husband is entitled to be granted a decree of divorce.

As a decree is passed, the wife is entitled to permanent alimony for her sustenance. While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. (Refer:
Vinny Parmar vs Paramvir Parmar7
;
U. Sree v. U. Srinivas8
). While granting permanent alimony, the Court is required to take note of the fact that the amount of maintenance fixed for wife is such that she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. The living need not be luxurious but simultaneously she should not live in discomfort.

Regard being had to the status of the husband (class-IV employee), further, taking note that respondent-wife is presently gainfully employed as a class-IV employee, I think it would be appropriate to fix one time permanent alimony at Rs. One lac which shall be deposited before the court below within a period of four months from date. In the event of the sum as directed is deposited, the same shall be released in favour of the respondent upon verification.

The appeal is allowed, accordingly, suit is decreed on the ground of mental cruelty.

No cost.

Order Date :- 13.10.2017

K.K. Maurya