High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

FAO No. 400 of 2014.

Reserved on: 17.11.14

Decided on: 19.11.2014.

Satish Kumar ……Appellant.

Versus

Shakuntla Devi …….Respondent.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

Whether approved for reporting?

1

Yes.

For the appellant:

Mr. Nipun Sharma, Advocate.

For the respondent:

Ms. Soma Thakur, Advocate, vice counsel.

----------------------------------------------------------------------------------------------

Justice Rajiv Sharma, J.

This FAO is directed against the judgment dated

14.8.2013, rendered by the learned Addl. District Judge (III),

Kangra at Dharamshala, in HMA Petition No. 7-N/III/06.

2. Key facts, necessary for the adjudication of this appeal

are that the appellant has filed the petition under Section 13 (1)

(ia) & (ib), of the Hindu marriage Act, 1955 for dissolution of

marriage on the grounds of desertion and cruelty. The marriage

between the appellant and the respondent was solemnized on

7.10.2002 according to Hindu rites, customs and ceremonies. The

respondent resided with the appellant only for about 15 days and

thereafter she went to the house of her parents. The respondent

started behaving indifferently with the petitioner and she insisted

not to stay with him as her marriage was not solemnized with her

consent by her parents. The appellant tried to make the

respondent understand, but she did not adhere to the appellant.

He had also gone on 2.3.2003 and 6.7.2003 to the respondent to

bring her back. The parents of the respondent wanted to keep the

appellant as ‘Khana Damad’ in their house. However, the

1

Whether reporters of the local papers may be allowed to see the judgment?

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 2

appellant refused to do so. The respondent subjected the appellant

with cruelty. She has deserved him. She had deliberately killed

the child of the appellant in her womb by illegal abortion with

malafide intention not to settle with the appellant.

4. The petition was contested by the respondent by filing

reply. According to the averments contained in the reply, the

respondent stayed with the appellant for 4-5 months. The

appellant and his mother started torturing her. They used to taunt

her for dowry articles and cash. The appellant used to come daily

in the state of intoxication. He used to give beatings to the

respondent. The respondent has categorically denied that she has

left the company of the appellant. The Mundan ceremony in the

house of the sister of the respondent was solemnized. The

appellant accompanied the respondent to attend the ceremony.

After attending the ceremony, the appellant directed the

respondent not to come back to his house. Thereafter, the

appellant never went to the respondent’s house to bring her back

and settle the matter. She gave birth to a child on 30.7.2003. The

female child was born dead. No maintenance was provided to the

respondent. She has moved application under Section 125 Cr.P.C.

A sum of ` 800/- per month was granted as maintenance to the

respondent. However, during the course of execution proceedings,

the Court asked the appellant to take the respondent back with

him. The appellant agreed for that and on 18.11.2006 the

respondent was taken back. However, after 5-6 months, the

appellant used to show a photograph of one girl and forced the

respondent to give him in writing to bring that girl to his house.

When the respondent refused to do so, the appellant started

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 3

maltreating the respondent. When she was 6-7 months pregnant,

she was forced by the appellant to go to her parental house. She

gave birth to another child in the year 2007.

5. The rejoinder was filed by the appellant. The issues

were framed by the learned Addl. District Judge (III), Kangra at

Dharamshala on 13.7.2010. The learned Addl. District Judge (III),

Kangra at Dharamshala, dismissed the petition on 14.8.2013.

6. I have heard the learned counsel for the parties and

also gone through the record and judgment dated 14.8.2013

carefully.

7. What emerges from the evidence placed on record is

that the marriage was solemnized between the appellant and the

respondent on 7.10.2002 according to Hindu rites and customs.

8. According to the appellant, the respondent has treated

him with cruelty and also deserted him. The appellant has

appeared as PW-1. In his cross-examination, he has admitted that

he alongwith the respondent had gone to attend ‘ mundan

ceremony’ at the house of the sister of the respondent. They

remained there during night. He also deposed that he left the

respondent in the house of her sister. He has also admitted that

he has never gone to the respondent’s house to take her back. He

has also admitted that the respondent has given birth to female

child in her parental house. He has never gone to see respondent

and even the child. He had shown his ignorance about the birth

given to dead child by the respondent on 30.7.2003. In the

petition, it is stated that respondent had herself killed the child in

the womb. However, when he appeared in the Court, he had

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 4

shown ignorance about this fact that dead child was born to the

respondent. He was not providing maintenance to the respondent.

9. Respondent has appeared as RW-1. She has

corroborated the facts stated in the reply. RW-2 Prem Singh is the

father of the respondent. He has testified that the appellant has

left the respondent in the house of her sister when the parties had

gone to attend the ‘mundan ceremony’. RW-3 Balbir Singh,

deposed that he had gone to the house of the appellant with the

father of the respondent. However, he found that the appellant did

not want to keep the respondent as his wife. The mother of the

appellant wanted to keep another lady with the appellant.

10. The respondent was constrained to move an

application under Section 125 Cr.P.C. She was awarded

maintenance of Rs. 800/- per month. However, in order to avoid

the payment of maintenance, he agreed to bring back the

respondent. The respondent stayed with him for 5-6 months.

Thereafter, the appellant again created adverse circumstances and

forced the respondent to go to her parental house. The girl child

was born in the year 2007. He has not gone even to see

respondent or newly born child. The appellant has also admitted

that the respondent wanted to live with him but he himself did not

want to reside with the respondent.

11. Mr. Nipun Sharma, Advocate, for the appellant has

also argued that the appellant infact had gone to the house of the

respondent to bring her back. However, no evidence to this effect

has been produced. RW-2 Prem Singh and RW-3 Balbir Singh

have tried to settle the matter amicably by visiting the house of the

appellant. Respondent was not decently treated when she had

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 5

gone back and stayed with the appellant for 5-6 months. The

respondent always wanted to live in the company of the appellant.

It is the appellant who has deserted the respondent. He cannot be

permitted to take advantage of his own fault. The respondent has

never treated the appellant with cruelty. The appellant’s behavior

rather towards respondent was abnormal. He has not looked after

the respondent. She was forced to file petition for maintenance.

He had agreed to bring the respondent back only to avoid the

payment of maintenance as ordered by the Court. He has not even

cared to see his wife at the time of delivery in the year 2007. The

respondent has been neglected by the appellant.

12. Their Lordships of the Hon’ble Supreme Court in

Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957

SC 176 have held that two essential conditions must be there to

prove the desertion: (1) the factum of separation, and (2) the

intention to bring cohabitation permanently to an end (animus

deserendi). Their Lordships have held that desertion is a matter of

inference to be drawn from the facts and circumstances of each

case. Their Lordships have held as under:

“What is desertion? "Rayden on Divorce" which is a

standard work on the subject at p.128 (6th Edn.) has

summarized the case-law on the subject in these

terms:-

"Desertion is the separation of one spouse from the

other, with an intention on the part of the deserting

spouse of bringing cohabitation permanently to an end

without reasonable cause and without the consent of

the other spouse; but the physical act of departure by

one spouse does not necessarily make that spouse the

deserting party".

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 6

The legal position has been admirably summarized in

paras 453 and 454 at pp. 241. to 243 of Halsbury's

Laws of England (3rd Edn.), VoL 12, in the following

words:-

"In its essence desertion means the intentional

permanent forsaking and abandonment of one spouse

by the other without that other's consent and without

reasonable cause. It is a total repudiation of the

obligations of marriage. In view of the large variety of

circumstances and of modes of life involved, the Court

has discouraged attempts at defining desertion, there

being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from

the state of things, for what the law seeks to enforce is

the recognition and discharge of the common

obligations of the married state; the state of things

may usually be termed, for short, 'the home'. There

can be desertion without previous cohabitation by the

parties, or without the marriage having been

consummated. The person who actually withdraws

from cohabitation is not necessarily the deserting

party. The fact that a husband makes an allowance to

a wife whom he has abandoned is no answer to a

charge of desertion.

The offence of desertion is a course of conduct which

exists independently of its duration, but as a ground

for divorce it must exist for a period of at least three

years immediately preceding the presentation of the

petition where the offence appears as a cross-charge,

of the answer. Desertion as a ground of divorce differs

from the statutory grounds of adultery and cruelty in

that the offence founding the cause of action of

desertion is not complete, but is inchoate, until the

suit is constituted. Desertion is a continuing offence".

Thus the quality of permanence is one of the essential

elements which differentiates desertion from wilful

separation. If a spouse abandons the other spouse in a

state of temporary passion, for example anger or

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 7

disgust, without intending permanently to cease

cohabitation, it will not amount to desertion. For the

offence of desertion, so far as the deserting spouse is

concerned, two essential conditions must be there

namely, (1) the factum of separation, and (2) the

intention to bring cohabitation permanently to an end

(animus deserendi). Similarly two elements are

essential so far as the deserted spouse is concerned:

(1) the absence of consent, and (2) absence of conduct

giving reasonable cause to the spouse leaving the

matrimonial home to form the necessary intention

aforesaid. The petitioner for divorce bears the burden

of proving those elements in the two spouses

respectively. Here a difference between the English law

and the law as enacted by the Bombay Legislature may

be pointed out. Whereas under the English law those

essential conditions must continue throughout the

course of the three years immediately preceding the

institution of the suit for divorce, under the Act, the

period is four years without specifying that it should

immediately precede the commencement of

proceedings for divorce. Whether the omission of the

last clause has any practical result need not detain us,

as it does not call for decision in the present case.

Desertion is a matter of inference to be drawn from the

facts and circumstances to each case. The inference

may be drawn from certain facts which may not in

another case be capable of leading to the same

inference; that is to say, the facts have to be viewed as

to the purpose which is revealed by those acts or by

conduct and expression of intention, both anterior and

subsequent to the actual acts of separation. If in fact,

there has been a separation, the essential question

always is whether that act could be attributable to an

animus deserendi. The offence of desertion commences

when the fact of separation and the animus deserendi

co- exist. But it is not necessary that they should

commence at the same time. The de facto separation

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 8

may have commenced without the necessary animus

or it may be that the separation and the (animus

deserendi) coincide in point of time; for example, when

the separating spouse abandons the marital home

with the intention, express or implied of bringing

cohabitation permanently to a close. The law in

England has prescribed a three years period and the

Bombay Act prescribed a period of four years as a

continuous period during which the two elements

must subsist. Hence, if a deserting spouse takes

advantage of the locus poenitentiae thus provided by

law and decides to come back to the deserted spouse

by a bona fide offer of resuming the matrimonial home

with all the implications of marital life, before the

statutory period is out or even after the lapse of that

period, unless proceedings for divorce have been

commenced, desertion comes to an end, and if the

deserted spouse unreasonably refuses to offer, the

latter may be in desertion and not the former. Hence it

is necessary that during all the period that there has

been a desertion, the deserted spouse must affirm the

marriage and be ready and willing to resume married

life on such conditions as may be reasonable. It is also

well settled that in proceedings for divorce the plaintiff

must prove the offence of desertion, like and other

matrimonial offence, beyond all reasonable doubt.

Hence, though corroboration is not required as an

absolute rule of law the courts insist upon

corroborative evidence, unless its absence is

accounted for to the satisfaction of the court. In this

connection the following observations of Lord Goddard

CJ. in the case of Lawson v. Lawson, 1955-1 All E R

341 at p. 342(A), may be referred to :-

"These cases are not cases in which corroboration is

required as a matter of law. It is required as a matter

of precaution....... "

With these preliminary observations we now proceed to

examine the evidence led on behalf of the parties to

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 9

find out whether desertion has been proved in this

case and, if so, whether there was a bona fide offer by

the wife to return to her matrimonial home with a view

to discharging marital duties and, if so, whether there

was an unreasonable refusal on the part of the

husband to take her back.

13. Their Lordships of the Hon’ble Supreme Court in

Lachman Utamchand Kirpalani versus Meena alias Mota,

AIR 1964 SC 40 have held that in its essence desertion means the

intentional permanent forsaking and abandonment of one spouse

by the other without that other’s consent and without reasonable

cause. It is a total repudiation of the obligations of marriage. Their

Lordships have further held that the burden of proving desertion -

the ‘factum’ as well as the ‘animus deserendi’ is on the petitioner

and he or she has to establish beyond reasonable doubt to the

satisfaction of the Court, the desertion throughout the entire

period of two years before the petition as well as that such

desertion was without just cause. Their Lordships have held as

under:

“The question as to what precisely constitutes

"desertion" came up for consideration before this Court

in an appeal for Bombay where the Court had to

consider the provisions of S. 3(1) of the Bombay Hindu

Divorce Act, 1947 whose language is in pari materia

with that of S. 10(1) of the Act. In the judgment of this

Court in Bipin Chandra v. Prabhavati, 1956 SCR 838;

((S) AIR 1957 SC 176) there is an elaborate

consideration of the several English decisions in which

the question of the ingredients of desertion were

considered and the following summary of the law in

Halsbury's Laws of England (3rd Edn.) Vol. 12 was

cited with approval :

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 10

"In its essence desertion means the intentional

permanent forsaking and abandonment of one spouse

by the order without that other's consent, and without

reasonable cause. It is a total repudiation of the

obligations of marriage. In view of the large variety of

circumstances and of modes of life involved, the Court

has discouraged attempts at defining desertion, there

being no general principle applicable to all cases." The

position was thus further explained by this Court. "If a

spouse abandons the other spouse in a state of

temporary passion, for example, anger or disgust,

without intending permanently the cease cohabitation,

it will not amount to desertion. For the offence of

desertion so far as the deserting spouse is concerned,

two essential conditions must be there, (1) the factum

of separation, and (2) the intention of bring

cohabitation permanently to an end (animus deserndi).

Similarly two elements are essential so far as the

deserted spouse is concerned : (1) the absence of

consent, and (2) absence of conduct giving reasonable

cause to the spouse leaving the matrimonial home to

form the necessary intention aforesaid.. . . . . Desertion

is a matter of inference to be drawn from the facts and

circumstances of each case. The inference may be

drawn from certain facts which may not in another

case be capable of leading to the same inference; that

is to say, the facts have to be viewed as to the purpose

which is revealed by those acts or by conduct and

expression of intention, both anterior and subsequent

to the actual acts of separation. If, in fact, there has

been a separation, the essential question always is

whether that act could be attributable to an animus

deserendi. The offence of desertion commences when

the fact of separation and the animus deserendi

coexist. But it is not necessary that they should

commence at the same time. The de facto separation

may have commenced without the necessary animus

or it may be that the separation and the animus

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 11

deserendi coincide in point of time." Two more matters

which have a bearing on the points in dispute in this

appeal might also be mentioned. The first relates to

the burden of proof in these cases, and this is a point

to which we have already made a passing reference. It

is settled Law that the burden of proving desertion -

the "factum" as well as the "animus deserendi" - is on

the petitioner; and he or she has to establish beyond

reasonable doubt, to the satisfaction of the Court, the

desertion throughout the entire period of two years

before the petition as well as that such desertion was

without just cause. In other words, even if the wife,

where she is the deserting spouse, does not prove just

cause for her living apart, the petitioner-husband has

still to satisfy the Court that the desertion was without

just cause. As Dunning, L. observed : (Dunn v. Dunn

(1948) 2 All ER 822 at p. 823) :

"The burden he (Counsel for the husband) said was on

her to prove just cause (for living apart). The argument

contains a fallacy which has been put forward from

time to time in many branches of the law. The fallacy

lies in a failure to distinguish between a legal burden

of proof laid down by law and a provisional, burden

raised by the state of the evidence . . . . . . . . . . . The

legal burden throughout this case is on the husband,

as petitioner, to prove that this wife deserted him

without cause. To discharge that burden, he relies on

the fact that he asked her to join him and she refused.

That is a fact from which the court may infer that she

deserted him without cause, but it is not bound to do

so. Once he proves the fact of refusal, she may seek to

rebut the inference of desertion by proving that she

had just cause for her refusal; and, indeed, it is

usually wise for her to do so, but there is no legal

burden on her to do so. Even if she does not

affirmatively prove just cause, the Court has still, at

the end of the case, to ask itself: Is the legal burden

discharged? Has the husband proved that she

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 12

deserted him without cause? Take this case. The wife

was very deaf, and for that reason could not explain to

the Court her reasons for refusal. The judge thereupon

considered reasons for her refusal which appeared

from the facts in evidence, though she had not herself

stated that they operated on her mind. Counsel for the

husband says that the judge ought not to have done

that. If there were a legal burden on the wife he would

be right, but there was none. The legal burden was on

the husband to prove desertion without cause, and the

judge was right to ask himself at the end of the case:

Has that burden been discharged?"

14. Their Lordships of the Hon’ble Supreme Court in Smt.

Rohini Kumari versus Narendra Singh , AIR 1972 SC 459 have

explained the expression ‘desertion’ to mean the desertion of the

petitioner by the other party to the marriage without reasonable

cause and without the consent or against the wish of such party

and includes the willful neglect of the petitioner by the other party

to the marriage.

“Under Section 10 (1) (a) a decree for judicial

separation can be granted on the ground that the

other party has deserted the petitioner for a

continuous period of not less than two years

immediately preceding the presentation of the petition.

According to the Explanation the expression

"desertion" with its grammatical variation and cognate

expression means the desertion of the petitioner by the

other party to the marriage without reasonable cause

and without the consent or against the wish of such

party and includes the willful neglect of the petitioner

by the other party to the marriage. The argument

raised on behalf of the wife is that the husband had

contracted a second marriage on May 17, 1955. The

petition for judicial separation was filed on August 8,

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 13

1955 under the Act which came into force on May 18,

1955. The burden under the section was on the

husband to establish that the wife had deserted him

for a continuous period of not less than two years

immediately preceding the presentation of the petition.

In the presence of the Explanation it could not be said

on the date on which the petition was filed that the

wife had deserted the husband without reasonable

cause because the latter had married Countess Rita

and that must be regarded as a reasonable cause for

her staying away from him. Our attention has been

invited to the statement in Rayden on Divorce, 11th

Edn. Page 223 with regard to the elements of desertion

According to that statement for the offence of desertion

there must be two elements present on the side of the

deserting spouse namely, the factum, i.e. physical

separation and the animus deserendi i.e. the intention

to bring cohabitation permanently to an end. The two

elements present on the side of the deserted spouse

should be absence of consent and absence of conduct

reasonably causing the deserting spouse to form his or

her intention to bring cohabitation to an end. The

requirement that the deserting spouse must intend to

bring cohabitation to an end must be understood to be

subject to the qualification that if without just cause

or excuse a man persists in doing things which he

knows his wife probably will not tolerate and which no

ordinary woman would tolerate and then she leaves,

he has deserted her whatever his desire or intention

may have been. The doctrine of "constructive

desertion" is discussed at page 229. It is stated that

desertion is not to be tested by merely ascertaining

which party left the matrimonial home first. If one

spouse is forced by the conduct of the other to leave

home, it may be that the spouse responsible for the

driving out is guilty of desertion. There is no

substantial difference between the case of a man who

intends to cease cohabitation and leaves the wife and

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 14

the case of a man who with the same intention

compels his wife by his conduct to leave him.”

15. Their Lordships of the Hon'ble Supreme Court in the

case of Shobha Rani v. Madhukar Reddi reported in AIR 1988

SC 121 have explained the term “cruelty” as under:

“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 elation 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. 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. 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. 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.

5. It will be necessary to bear in mind that there

has been marked change in the life around us. In

matrimonial duties and responsibilities in particular,

we find a sea change. They are of varying degrees

from house to house or person to person. Therefore,

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 15

when a spouse makes complaint about the treatment

of cruelty by the partner in life or relations, the Court

should not search for standard in life. A set of facts

stigmatised 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 may also

depend upon their culture and human values to

which they attach importance. We, the judges and

lawyers, therefore, should not import our own

notions of life. We may not go in parallel with

them. There may be a generation gap between us and

the parties. It would be better if we keep aside our

customs and manners. It would be also better if we

less depend upon precedents. Because as Lord

Denning said in Sheldon v. Sheldon, [1966] 2 All

E.R. 257 (259) "the categories of cruelty are not

closed." 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/realm of cruelty.”

16. Their Lordships of the Hon'ble Supreme Court in

Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511,

have enumerated some instances of human behaviour, which may

be important in dealing with the cases of mental cruelty, as under:

“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 definition of the concept of

'mental cruelty' within which all kinds of cases of

mental cruelty can be covered. No court in our

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 16

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.

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 17

(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

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

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 18

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

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 19

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.”

17. Their Lordships of the Hon'ble Supreme Court have

held in Manisha Tyagi vs. Deepak Kumar reported in 2010(1)

Divorce & Matrimonial Cases 451, as under:

“24. This is no longer the required standard.

Now it would be sufficient to show that the

conduct of one of the spouses is so abnormal

and below the accepted norm that the other

spouse could not reasonable be expected to put

up with it. The conduct is no longer required to

be so atrociously abominable which would cause

a reasonable apprehension that would be

harmful or injurious to continue the

cohabitation with the other spouse. Therefore, to

establish cruelty it is not necessary that physical

violence should be used. However, continued ill-

treatment cessation of marital intercourse,

studied neglect, indifference of one spouse to the

other may lead to an inference of cruelty.

However, in this case even with aforesaid

standard both the Trial Court and the Appellate

Court had accepted that the conduct of the wife

did not amount to cruelty of such a nature to

enable the husband to obtain a decree of

divorce.”

18. Their Lordships of the Hon'ble Supreme Court have

held in Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC

476, as under:

“19. It may be true that there is no definition of

cruelty under the said Act. Actually such a

definition is not possible. In matrimonial

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 20

relationship, cruelty would obviously mean

absence of mutual respect and understanding

between the spouses which embitters the

relationship and often leads to various outbursts

of behaviour which can be termed as cruelty.

Sometime cruelty in a matrimonial relationship

may take the form of violence, sometime it may

take a different form. At times, it may be just an

attitude or an approach. Silence in some

situations may amount to cruelty.

20. Therefore, cruelty in matrimonial

behaviour defies any definition and its categories

can never be closed. Whether the husband is

cruel to his wife or the wife is cruel to her

husband has to be ascertained and judged by

taking into account the entire facts and

circumstances of the given case and not by any

predetermined rigid formula. Cruelty in

matrimonial case can be of infinite variety – it

may be subtle or even brutal and may be by

gestures and word. That possible explains why

Lord Denning in Sheldon v. Sheldon held that

categories of cruelty in matrimonial case are

never closed.

21. This Court is reminded of what was said by

Lord Reid in Gollins v. Gollins about judging

cruelty in matrimonial cases. The pertinent

observations are (AC p.660)

“.. In matrimonial cases we are not

concerned with the reasonable man as we

are in cases of negligence. We are dealing

with this man and this woman and the

fewer a priori assumptions we make about

them the better. In cruelty cases one can

hardly ever even start with a presumption

that the parties are reasonable people,

because it is hard to imagine any cruelty

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 21

case ever arising if both the spouses think

and behave as reasonable people.”

22. “ About the changing perception of cruelty in

matrimonial cases, this Court observed in

Shobha Rani v. Madhukar Reddi at AIR p. 123,

para 5 of the report: (SCC p.108, para 5)

“5. It will be necessary to bear in mind

that there has been (a) marked change in

the life around us. In matrimonial duties

and responsibilities in particular, we find

a sea change. They are of varying degrees

from house to house or person to person.

Therefore, when a spouse makes

complaint about the 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 may also depend upon

their culture and human values to which

they attach importance. We, the Judges

and lawyers, therefore, should not import

our own notions of life. We may not go in

parallel with them. There may be a

generation gap between us and the

parties.”

19. Their Lordships of the Hon'ble Supreme Court have

held in Pankaj Mahajan vs. Dimple Alias Kajal reported in

(2011) 12 SCC 1, as under

“36. From the pleadings and evidence, the following

instances of cruelty are specifically pleaded and stated.

They are:

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 22

i. Giving repeated threats to commit suicide and even

trying to commit suicide on one occasion by jumping

from the terrace.

ii. Pushing the appellant from the staircase resulting

into fracture of his right forearm.

iii. Slapping the appellant and assaulting him. iv.

Misbehaving with the colleagues and relatives of the

appellant causing humiliation and embarrassment to

him.

v. Not attending to household chores and not even

making food for the appellant, leaving him to fend for

himself.

vi. Not taking care of the baby.

vii. Insulting the parents of the appellant and

misbehaving with them.

viii. Forcing the appellant to live separately from his

parents.

ix. Causing nuisance to the landlord's family of the

appellant, causing the said landlord to force the

appellant to vacate the premises.

x. Repeated fits of insanity, abnormal behaviour

causing great mental tension to the appellant.

xi. Always quarreling with the appellant and abusing

him.

xii. Always behaving in an abnormal manner and

doing weird acts causing great mental cruelty to the

appellant.”

20. Their Lordships of the Hon'ble Supreme Court have

held in Vishwanath Agrawal vs. Sarla Vishwanath Agrawal

reported in (2012) 7 SCC 288 as under:

“22. The expression ‘cruelty’ has an inseparable nexus

with human conduct or human behaviour. It is always

dependent upon the social strata or the milieu to

which the parties belong, their ways of life,

relationship, temperaments and emotions that have

been conditioned by their social status.

::: Downloaded on - 03/11/2022 19:57:49 :::CIS

High Court of H.P. 23

28. In Praveen Mehta v. Inderjit Mehta, AIR 2002 SC

2582 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 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.”

21. In the instant case, the appellant has failed to prove

that the respondent has deserted him. The appellant has also

failed to prove that the respondent has treated him with cruelty.

22. Accordingly, there is no merit in this appeal, the same

is dismissed. No costs.

November 19, 2014, ( Rajiv Sharma ),

(karan) Judge.

::: Downloaded on - 03/11/2022 19:57:49 :::CIS