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CASE NO.:

Appeal (civil) 3930 of 2002

PETITIONER:

PARVEEN MEHTA

Vs.

RESPONDENT:

INDERJIT MEHTA

DATE OF JUDGMENT: 11/07/2002

BENCH:

D.P. MOHAPATRA, BRIJESH KUMAR.

JUDGMENT:

D.P.MOHAPATRA,J.

Leave granted.

What is the meaning and import of the

expression 'cruelty' as a matrimonial offence is the core

question on the determination of which depends the result

and the fate of this case.

The appellant is the wife of the respondent. They

were married according to Hindu rites and customs on 6th

December, 1985. The marriage was preceded by

negotiation between the two families, ring exchange

ceremony, etc. A meeting between the boy and the girl was

also arranged at Yamuna Nagar in the State of Haryana.

After marriage the spouses stayed together at Panipat

where the respondent was posted as a Judicial Officer.

They lived together till 28th April, 1986 when they parted

company never to stay together again. It is the case of the

respondent that right from the first day of the marriage he

sensed something abnormal with his wife; he was unable

to consummate the marriage as there was no cooperation

from the side of the wife for sexual intercourse. Despite

several attempts cohabitation was not possible for lack of

cooperation on the part of the wife. It is the further case of

the respondent that when he first met his wife when some

members of the two families met he had noticed that she

was looking very frail and weak. When he wanted to know

the reason for such state of her health her father and other

relations told him that she had been undergoing a strict

diet control and had been making efforts to reduce her

w.eight

On questioning his wife immediately after the

marriage the respondent could ascertain that she was

suffering from some ailment and she was under the

treatment of Vaid Amar Nath Sastry of Chandigarh. On

10th December, 1985 the respondent took his wife to see

Mr.Sastry at Chandigarh who informed him that father of

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the girl was his close friend and he was already seized of

the problems of her health. He gave some medicines to be

taken by her. Thereafter they returned to Yamuna Nagar

where parents of the respondent were living. Subsequently,

the respondent took the appellant to Panipat where he was

posted and they started living there and continued with

the medicines. In February, 1986 the appellant agreed to

be examined by Dr.B.M.Nagpal of Civil Hospital, Panipat.

The doctor advised a thorough check up and diagnosis.

However, this was not possible since the appellant did not

cooperate and ultimately gave out because she was not

interested in taking any medical treatment.

The respondent further alleged that the state of

health of the appellant continued to deteriorate; she

continued to lose weight; she suffered from asthmatic

attacks; on account of her ailment her behavior became

quarrelsome; and on trifle matters she threatened to leave

the matrimonial home. It was further contended that

during her stay at Panipat when Surinder Singh Rao and

Virender Jain, friends of the respondent visited his place,

the appellant refused to prepare tea and started

misbehaving with him in presence of the outsiders thereby

causing embarrassment to him. Ultimately on 28th April,

1986 her brother and brother's wife came to Panipat and

took the appellant with them. It was the further case of

the respondent that when the appellant was with her

parents several attempts were made by him offering to give

her the best possible medical treatment so that the

condition of her health may improve and both of them

could lead a happy married life. All such attempts failed.

The offer of medical treatment was rejected and even

nature of the ailment suffered by her was not disclosed to

the respondent.

On one occasion when Shri S.K. Jain, a senior officer

of the Judicial Service, then the Legal Remembrancer of

Haryana and who later became a Judge of the High Court

was discussing the matter with the parties with a view to

bring about a settlement the appellant caught hold of the

shirt collar of the respondent and created an ugly and

embarrassing situation. Again on 30th July 1986 the

appellant accompanied by a number of persons searched

for the respondent in the Court premises at Kaithal and

not finding him there forcibly entered his house and

threatened him. A report about the incident was sent to

the superior officer of the respondent. Alleging the

aforestated facts and circumstances the respondent filed

the petition in August, 1996 seeking dissolution of the

marriage on the grounds of cruelty and desertion.

The appellant refuted the allegations made in the

petition. She denied that her husband had been misled

regarding the state of her health before their marriage. She

alleged that the marriage was duly consummated and the

phera ceremony was performed; and that her husband had

been expressing full love and affection towards her. She

denied that she suffered from any serious ailment and had

been treated by Vaid Amar Nath Sastri. It was her case

that she had become pregnant from the wedlock but

unfortunately there was miscarriage. It was the further

case of the appellant that the respondent and his parents

wanted to pressurise the appellant and her parents to

agree for a divorce by mutual consent. On 21st June, 1987

when a meeting of relations of both sides took place at the

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house of her mother's sister Smt.Parakash Kapur at

Yamuna Nagar the respondent stated that the appellant

was too frail and weak; that she must be suffering from

some disease and therefore, he was not prepared to take

her back. Thereafter several attempts were made by her

parents and other relations to persuade the respondent to

take the appellant to his house but such attempts were of

no avail on account of want of any response from the

respondent and his parents.

On the pleadings of the parties, the Trial Court

framed the following issues :

"1) Whether the respondent-wife has

deserted the petitioner, if so, its

effect? OPP

2) Whether the respondent-wife is

guilty of cruelty, if so, its effect?

OPP

3) Whether this petition is barred by

latches, in accordance with

Section 23(1a) and (d) of the Act?

OPP

4) Relief."

Both the parties led evidence, both oral and

documentary, in support of their cases. The Trial Court on

assessing the evidence on record, dismissed the petition

for divorce filed by the respondent.

The respondent filed an appeal, FAO No.42-M/99

before the High Court assailing the judgment of the Trial

Court. The appeal was allowed by the learned Single

Judge by the judgment rendered on 1st June, 2000. The

learned Single Judge granted the prayer of the respondent

for dissolution of the marriage on the ground of cruelty

and further held that as the marriage took place about 14

years ago and there was no child out of the wedlock it

would be in the interest of justice that the parties should

be separated from each other. The operative portion of the

judgment is quoted hereunder :

"In view of the discussion as such the

only conclusion which can be arrived

at is that despite the fact that the

respondent is a good lady but has

created the aforesaid situation because

of her own act and conduct concerning

the non-disclosure of her state of

health and concealment by her above

acted as a mental and physical cruelty

to the appellant which entitles him to a

decree of divorce. Therefore, the

findings of the learned District Judge

on issue Nos.1 to 3 are reversed.

For the foregoing reasons, the

appeal is allowed, marriage between

the parties stands dissolved and a

decree of divorce on the grounds of

desertion and cruelty is hereby granted

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in favour of the appellant (husband)

and against the respondent (wife). In

the circumstances of the case, the

parties are left to bear their own costs.

However, it would be appropriate to

ask the husband not to remarry till

30.9.2000. Hence ordered accordingly."

The wife, who is the appellant herein, filed an appeal

before the Division Bench, Letters Patent Appeal No.1000

of 2000, assailing the judgment of the learned Single

Judge. The Division Bench of the High Court by the

judgment rendered on 8th August, 2000 dismissed the

Letters Patent Appeal in limine. The Division Bench held:

"Even otherwise, in the facts and circumstances of the

case in hand, in our view, it cannot be said that the

husband has tried to take advantage of any wrong on his

part. Rather, he did make the best possible effort to

explore the possibility of detecting the deficiency or

disease, if any, and for treatment of poor health of his wife.

But, all in vain. We find no merit in the Letters Patent

Appeal. It is, therefore, dismissed in limine." The said

judgment is under challenge in this appeal.

Shri Ujjagar Singh, learned senior counsel appearing

for the appellant contended that in the context of facts and

circumstances of the case the High Court has erred in

granting the prayer for divorce by the respondent on the

sole ground of cruelty. He further contended that even

assuming that the spouses did not enjoy normal sexual

relationship with each other on account of frail health of

the appellant and there were heated exchanges between

the parties followed by the appellant catching hold of shirt

collar of the husband, that is not sufficient to establish a

case of cruelty for the purpose of Section 13(1)(ia) of the

Act. Shri Singh also contended that if the ground of

cruelty fails then the further ground stated in favour of the

decree of divorce that the marriage has irretrievably broken

down will be of no avail to the respondent.

Shri Sudhir Chandra, learned senior counsel

appearing for the respondent strenuously contended that

in the facts and circumstances of the case the High Court

rightly recorded the finding of cruelty by the appellant

towards the respondent. Elucidating the point Shri Sudhir

Chandra submitted that the respondent was kept in the

dark about the poor state of health of the appellant at the

time of the marriage negotiations despite the query made

by him about the reason for her frail and weak health.

After marriage when the respondent was prepared to

provide the best possible medical treatment to improve her

health neither the appellant nor her parents extended their

cooperation in the matter. Further, the erratic and

impulsive behavior of the wife caused serious

embarrassment to the respondent before his friends and

colleagues. The cumulative effect of all the aforesaid facts

and circumstances of the case, according to Shri Sudhir

Chandra, give rise to reasonable apprehension in the mind

of the respondent that it is not safe to continue

matrimonial relationship with the appellant. Thus a case of

cruelty for the purpose of Section 13(1)(ia) was made out. It

was the further contention of Shri Sudhir Chandra that

the respondent remarried in December, 2000, two years

after the judgment of the Single Judge and nearly four

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months after the judgment of the Division Bench was

rendered. In the facts and circumstances of the case,

urged Shri Sudhir Chandra, this is not a fit case for this

Court to interfere with the judgment and decree passed by

the High Court in exercise of its jurisdiction under Article

136 of the Constitution of India.

As noted earlier, the learned Single Judge granted

the respondent's prayer for dissolution of the marriage on

the ground of 'cruelty'. Therefore, the question arises

whether in the facts and circumstances of the case a case

for divorce under Section 13(1)(ia) of the Hindu Marriage

Act,1955 (for short 'the Act') has been made out. The

answer to this question depends on determination of the

question formulated earlier. In Section 13(1) it is laid

down that :

"Divorce.- (1) Any marriage

solemnized, whether before or after the

commencement of this Act, may, on a

petition presented by either the

husband or the wife, be dissolved by a

decree of divorce on the ground that

the other party

xxx xxx xxx

(ia) has, after the solemnization of

the marriage, treated the petitioner

with cruelty;"

Under the statutory provision cruelty includes both

physical and mental cruelty. The legal conception of

cruelty and the kind of degree of cruelty necessary to

amount to a matrimonial offence has not been defined

under the Act. Probably, the Legislature has advisedly

refrained from making any attempt at giving a

comprehensive definition of the expression that may cover

all cases, realising the danger in making such attempt.

The accepted legal meaning in England as also in India of

this expression, which is rather difficult to define, had

been 'conduct of such character as to have caused danger

to life, limb or health (bodily or mental), or as to give rise to

a reasonable apprehension of such danger' (Russel v.

Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition,

Volume II page 87]. The provision in clause (ia) of Section

13(1), which was introduced by the Marriage Laws

(Amendment) Act 68 of 1976, simply states that 'treated

the petitioner with cruelty'. The object, it would seem, was

to give a definition exclusive or inclusive, which will amply

meet every particular act or conduct and not fail in some

circumstances. By the amendment the Legislature must,

therefore, be understood to have left to the courts to

determine on the facts and circumstances of each case

whether the conduct amounts to cruelty. This is just as

well since actions of men are so diverse and infinite that it

is almost impossible to expect a general definition which

could be exhaustive and not fail in some cases. It seems

permissible, therefore, to enter a caveat against any

judicial attempt in that direction (Mulla Hindu Law, 17th

Eidition, Volume II, page 87).

This Court in the case of Dastane vs. Dastane, AIR

1975 SC 1534, examined the matrimonial ground of

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cruelty as it was stated in the old Section 10(1)(b) and

observed that any inquiry covered by that provision had to

be whether the conduct charged as cruelty is of such a

character as to cause in the mind of the petitioner a

reasonable apprehension that it will be harmful or

injurious to live with the respondent. It was further

observed that it was not necessary, as under the English

law that the cruelty must be of such a character as to

cause danger to life, limb or health, or as to give rise to a

reasonable apprehension of such a danger though, of

course, harm or injury to health, reputation, the working

character or the like would be an important consideration

in determining whether the conduct of the respondent

amounts to cruelty or not. In essence what must be taken

as fairly settled position is that though the clause does not

in terms say so it is abundantly clear that the application

of the rule must depend on the circumstances of each

case; that 'cruelty' contemplated is conduct of such type

that the petitioner cannot reasonably be expected to live

with the respondent. The treatment accorded to the

petitioner must be such as to cause an apprehension in

the mind of the petitioner that cohabitation will be so

harmful or injurious that she or he cannot reasonably be

expected to live with the respondent having regard to the

circumstances of each case, keeping always in view the

character and condition of the parties, their status

environments and social values, as also the customs and

traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra

Pandey, (2002) 2 SCC 73, this Court construing the

question of 'cruelty' as a ground of divorce under Section

13(1)(ia) of the Act made the following observations :

"Treating the petitioner with cruelty is

a ground for divorce under Section

13(1)(i-a) of the Act. Cruelty has not

been defined under the Act but in

relation to matrimonial matters it is

contemplated as a conduct of such

type which endangers the living of the

petitioner with the respondent. Cruelty

consists of acts which are dangerous to

life, limb or health. Cruelty for the

purpose of the Act means where one

spouse has so treated the other and

manifested such feelings towards her

or him as to have inflicted bodily

injury, or to have caused reasonable

apprehension of bodily injury, suffering

or to have injured health. Cruelty may

be physical or mental. Mental cruelty

is the conduct of other spouse which

causes mental suffering or fear to the

matrimonial life of the other. "Cruelty",

therefore, postulates a treatment of the

petitioner with such cruelty as to cause

a reasonable apprehension in his or

her mind that it would be harmful or

injurious for the petitioner to live with

the other party. Cruelty, however, has

to be distinguished from the ordinary

wear and tear of family life. It cannot

be decided on the basis of the

sensitivity of the petitioner and has to

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be adjudged on the basis of the course

of conduct which would, in general, be

dangerous for a spouse to live with the

other. In the instant case both the

trial court as well as the High Court

have found on facts that the wife had

failed to prove the allegations of cruelty

attributed to the respondent.

Concurrent findings of fact arrived at

by the courts cannot be disturbed by

this Court in exercise of powers under

Article 136 of the Constitution of India.

Otherwise also the averments made in

the petition and the evidence led in

support thereof clearly show that the

allegations, even if held to have been

proved, would only show the sensitivity

of the appellant with respect to the

conduct of the respondent which

cannot be termed more than ordinary

wear and tear of the family life."

This Court, construing the question of mentral

cruelty under Section 13(1)(ia) of the Act, in the case of

G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296,

observed :

"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."

Quoting with approval the following passage from the

judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337,

this Court observed therein:

"Mental cruelty in Section 13(1)(i-a)

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. In other

words, 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

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continue to live with the other party. It

is not necessary to prove that the

mental cruelty is such as to cause

injury to the health of the petitioner.

While arriving at such conclusion,

regard must be had to the social

status, educational level of the parties,

the society 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 which it is neither

possible nor desirable to set out

exhaustively. What is cruelty in one

case may not amount to cruelty in

another case. It is a matter to be

determined in each case having regard

to the facts and circumstances of that

case. If it is a case of accusations and

allegations, regard must also be had to

the context in which they were made".

Clause (ia) of sub-Section (1) of Section 13 of the Act

is comprehensive enough to include cases of physical as

also mental cruelty. It was formerly thought that actual

physical harm or reasonable apprehension of it was the

prime ingredient of this matrimonial offence. That doctrine

is now repudiated and the 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

established from the facts (Mulla Hindu Law, 17th Edition,

Volume II, page 91).

In the case in hand the foundation of the case of

'cruelty' as a matrimonial offence is based on the

allegations made by the husband that right from the day

one after marriage the wife was not prepared to cooperate

with him in having sexual intercourse on account of which

the marriage could not be consummated. When the

husband offered to have the wife treated medically she

refused. As the condition of her health deteriorated she

became irritating and unreasonable in her behaviour

towards the husband. She misbehaved with his friends

and relations. She even abused him, scolded him and

caught hold of his shirt collar in presence of elderly

persons like Shri S.K.Jain. This Court in the case of

Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : "Sex

plays an important role in marital life and cannot be

separated from other factors which lend to matrimony a

sense of fruition and fulfillment".

Cruelty for the purpose of Section 13(1)(ia) is to be

taken as a behavior by one spouse towards the other

which causes reasonable apprehension in the mind of the

latter that it is not safe for him or her to continue the

matrimonial relationship with the other. Mental cruelty is

a state of mind and feeling with one of the spouses due to

the behavior or behavioral pattern by the other. Unlike the

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case of physical cruelty the mental cruelty is difficult to

establish by direct evidence. 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 inference has to be

drawn from the attending facts and circumstances taken

cumulatively. In case of mental cruelty it will not be a

correct approach to take an instance of misbehavior in

isolation and then pose the question whether such

behaviour is sufficient by itself to cause mental cruelty.

The approach should be to take the cumulative effect of

the facts and circumstances emerging from the evidence

on record and then draw a fair inference whether the

petitioner in the divorce petition has been subjected to

mental cruelty due to conduct of the other.

Judged in the light of the principles discussed above

what we find is that right from the beginning the

matrimonial relationship between the parties was not

normal; the spouses stayed together at the matrimonial

home for a short period of about six months; the

respondent had been trying to persuade the appellant and

her parents to agree to go for proper medical treatment to

improve her health so that the parties may lead a normal

sexual life; all such attempts proved futile. The appellant

even refused to subject herself to medical test as advised

by the doctor. After 21st June, 1987 she stayed away from

the matrimonial home and the respondent was deprived of

her company. In such circumstances, the respondent who

was enjoying normal health was likely to feel a sense of

anguish and frustration in being deprived of normal

cohabitation that every married person expects to enjoy

and also social embarrassment due to the behavior of the

appellant. Further, the conduct of the appellant in

approaching the police complaining against her husband

and his parents and in not accepting the advice of the

superior judicial officer Mr.S.K.Jain and taking a false plea

in the case that she had conceived but unfortunately there

was miscarriage are bound to cause a sense of mental

depression in the respondent. The cumulative effect of all

these on the mind of the respondent, in our considered

view, amounts to mental cruelty caused due to the

stubborn attitude and inexplicably unreasonable conduct

of the appellant.

The learned Single Judge in his judgment has

discussed the evidence in detail and has based his findings

on such discussions. In the Letters Patent Appeal the

Division Bench on consideration of the facts and

circumstances of the case agreed with the findings

recorded by the learned Single Judge. In the context of

the facts and circumstances on record we are of the view

that the learned Single Judge rightly came to the

conclusion that the prayer of the respondent for

dissolution of the marriage on the ground of cruelty under

Section 13(1)(ia) of the Act was acceptable. Therefore, the

Division Bench committed no error in upholding the

judgment of the learned Single Judge.

As noted earlier the parties were married on 6th

December, 1985. They stayed together for a short period

till 28th April 1986 when they parted company. Despite

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several attempts by relatives and well-wishers no

conciliation between them was possible. The petition for

the dissolution of the marriage was filed in the year 1996.

In the meantime so many years have elapsed since the

spouses parted company. In these circumstances it can be

reasonably inferred that the marriage between the parties

has broken down irretrievably without any fault on the

part of the respondent. Further the respondent has re-

married in the year 2000. On this ground also the

decision of the High Court in favour of the respondent's

prayer for dissolution of the marriage should not be

disturbed. Accordingly this appeal fails and is dismissed.

There will, however, be no order for costs.