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A.F.R.

Reserved on: 16.10.2019

Delivered on: 20.12.2019

Court No. - 34

Case :- FIRST APPEAL No. - 780 of 2017

Appellant :- Shri Vishnu Shankar Pandey

Respondent :- Smt. Maya Pandey

Counsel for Appellant :- Harish K. Yadav,Harish Kr. Yadav

Counsel for Respondent :- Brijesh Shukla,Arvind Kumar Tiwari

Hon'ble Sudhir Agarwal,J.

Hon'ble Rajeev Misra,J.

(Delivered by Hon'ble Rajeev Misra,J.)

1.Challenge in this appeal under Section 19 of Family Courts Act,

1984 (hereinafter referred to as 'Act, 1984') is to the judgement dated

25.8.2014 and decree dated 17.9.2014, passed by Additional Principal

Judge, Family Court/Additional District and Sessions Judge (Court No.

3), Allahabad, dismissing Matrimonial Petition No. 239 of 2009 (Sri

Vishnu Shanker Pandey Vs. Smt. Maya Pandey) under section 13 of

Hindu Marriage Act, 1955 (hereinafter referred to as 'Act, 1955') filed by

plaintiff-appellant for dissolution of marriage of the parties.

2.Plaintiff-appellant Sri Vishnu Shanker Pandey (hereinafter referred

to as 'appellant') filed Matrimonial Petition No. 239 of 2009 (Sri Vishnu

Shanker Pandey Vs. Smt. Maya Pandey) for divorce on the grounds of

cruelty and desertion. According to plaint allegations, marriage of parties

was solemnized 28-29 years prior to institution of above mentioned

matrimonial petition. From wedlock of parties, three children namely,

Sarita Pandey- Date of Birth 9.12.1984, Surya Prakash Pandey- Date of

Birth 2.11.1987 and Ved Prakash Pandey- Date of Birth 5.11.1989, were

born. Appellant retired from post of Honorary Lieutenant from Indian

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Army and started residing at 6/5 Madhuwan Vihar Colony, Umarpur Niva,

P.S. Dhoomanganj, District Allahabad. All three children have become

major and are residing with appellant. Eldest daughter of appellant Km.

Sarita Pandey is working in a private institute at Civil Lines Allahabad.

Plaintiff alleged that defendant respondent Maya Pandey, wife of

appellant (hereinafter referred to as 'respondent'), is also residing with

him. However, since last three years, conduct of respondent has gone bad

and she indulges in garrulous talking, which has disturbed peace of

house. Aforesaid conduct of respondent amounts to commission of

mental cruelty upon appellant. Contrary to her spousal obligations,

respondent by her conduct and behaviour has totally dissolved peace and

tranquillity of house. Whenever appellant tried to persuade respondent to

give up her such conduct, she always behaved rudely and with arrogance

and thereby, committing mental cruelty upon appellant. Consequently, it is

impossible for appellant to live with respondent. For the last three years,

respondent has miserably failed to discharge her spousal obligations even

though plaintiff has all along been faithful, nor ever committed such act

which may cause pain and agony to respondent. Inspite of aforesaid,

respondent has continuously by her false and frivolous allegations

degraded prestige of appellant by alleging that appellant is not

maintaining respondent and further commits physical atrocities upon her.

Appellant alleged that on 10.11.2008, he again persuaded respondent to

mend her ways but in vain. To the contrary, on the basis of false,

fabricated and incorrect allegations, respondent started residing separately

from plaintiff. In furtherance of aforesaid respondent filed an application

under section 125 Cr.P.C. claiming maintenance. Thoug parties are living

together in same house but they are not in conjugal relationship or in co-

habitation. As such, in the same house parties are living separately. Cause

of action was pleaded to be continuous since 10.11.2008. On the aforesaid

factual foundation, appellant filed Matrimonial Petition No. 239 of 2009

(Sri Vishnu Shanker Pandey Vs. Smt. Maya Pandey) under section 13 of

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Act, 1955 for dissolution of marriage.

3. Suit filed by appellant was contested by respondent. She filed written

statement dated 14.9.2009, whereby not only plaint allegations were

denied but additional pleas were also raised. Except for paragraphs 1 and

2 of plaint, remaining paragraphs were denied. In additional pleas

respondent admitted that from wedlock of parties, three children namely,

Km. Sarita Pandey, Surya Prakash Pandey and Ved Prakash Pandey were

born. Appellant retired from Indian Army from the post of Honorary

Lieutenant. All three children are still studying and preparing for their

examinations. However, appellant does not bear their expenses, as such

all expenses are borne by father of respondent. Eldest daughter Km. Sarita

Pandey has still not completed her studies and she is continuing the same.

However, she is working in a private institute at Civil Lines, Allahabad.

Respondent never behaved with appellant in a manner which is

unbecoming of a pious and faithful wife nor she ever displayed such

conduct on basis of which, it could be alleged that respondent has caused

physical/mental cruelty to appellant. To the Contrary, it is appellant who

has committed cruelty upon her by continuously assaulting her physically.

On account of aforesaid conduct, respondent disclosed the same to her

father upon which he repeatedly requested appellant to give up his rude

and immoral behaviour which is unbecoming of a caring husband and

ideal father. However, irrespective of above, inhuman conduct of

appellant continued unabated and on 20.12.2008, appellant in a drunken

position, assaulted respondent, ousted her from house, forcing respondent

to reside in a room outside her matrimonial home. No maintenance was

paid by appellant on account of which it was impossible for respondent to

reside with plaintiff. Respondent was always performing her spousal

obligations but inspite of above, appellant committed cruelty upon her by

his deed and conduct and further failed to maintain her. She never

insulted appellant. It was on account of aforesaid action of appellant that

respondent faced despair and destitution forcing her to initiate

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proceedings under section 125 Cr.P.C. for grant of maintenance. From

20.12.2008, parties are living separately in the same house. Three children

are residing with respondent and expenses for maintaining the respondent

and her three children are being borne by father of respondent. It is on

account of aforesaid that respondent is unable to discharge her spousal

obligations. On the aforesaid defence, respondent prayed for dismissal of

suit for divorce.

4. Appellant filed a rejoinder affidavit (Paper No. 16 Ga) to the written

statement filed by respondent whereby, Appellant reiterated and

reaffirmed allegations made in plaint.

5. On the above pleading of parties, Court below framed following issues

for determination:

(I) Whether appellant was married to respondent in the year 1980.

(ii) Whether respondent is not having marital co-habitation with appellant

since January, 2006.

(iii) Whether respondent is not discharging her marital obligations since

February, 2006.

(iv) Whether respondent is committing physical and mental cruelty upon

appellant since February, 2006 and without any reason is maintaining

distance from appellant since February, 2006.

(v) Whether on 10.11.2008 inspite of pursuation made by appellant

requesting respondent not to cause cruelty, respondent threatened

appellant that she will not reside with him but live separately.

(vi) Whether appellant always committed physical cruelty upon

respondent in a drunkard position and further committed mental cruelty

upon her. On 20.12.2008, appellant physically assaulted respondent as

such, respondent along with her three children is residing separately. No

amount of maintenance is being paid by appellant to respondent as such,

entire expenses are being borne by father of respondent, yet appellant

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repeatedly, extends threat to respondent of killing her.

6. After aforesaid issues were framed, parties went to trial. Appellant in

support of his case adduced himself as P.W.1. Further appellant also filed

documentary evidence which is detailed in paragraph 6 of impugned

judgement. Respondent adduced herself as D.W. 1 to establish her

defence. Respondent also adduced documentary evidence as detailed in

paragraph 6 of impugned judgement.

7. Court below on the basis of pleadings of parties, oral and documentary

evidence adduced, as well as submissions urged on behalf of parties,

examined the issues so framed. Court below accordingly re-framed the

issues which arose for determination i.e:

(I) Whether respondent has deserted appellant without any valid reason.

(ii) Whether respondent has displayed cruel behaviour against appellant.

(iii) Whether appellant is entitled to any relief.

8. In respect of issue no.1, Court below concluded that since factum of

marriage between parties is admitted, date of marriage, therefore, is

irrelevant. Issue nos. 1, 2 and 3 as originally framed were considered

together. Court below opined that three issues reframed subsequently are

included in Original Issue No.3. Upon evaluation of pleadings on record,

Court below held that plaintiff has instituted the suit on 23.3.2009. Cause

of action for desertion pleaded in plaint is 10.11.2008, which was said to

be continuous. As per mandate of Section 13 (i-b), a period of two years

must have lapsed from date of desertion up to the date of filing of suit for

pleading divorce on the ground of desertion. Aforesaid pre-condition is

not satisfied in present case. It was thus held by Court below that

appellant has failed to establish desertion on part of respondent. Court

below further concluded that respondent is residing separately along with

her three children. Conduct of appellant towards respondent is

unbecoming of a good husband, as he repeatedly commits physical assault

upon respondent in a drunken position and therefore, respondent started

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residing separately from 20.12.2008. Appellant himself has forced

respondent to live separately, as such, there is a valid reason for

respondent in residing separately. Consequently, it cannot be said that

respondent has deserted appellant. Issue Nos. 4, 5 and 6 were decided

together by Court below. Upon evaluation of evidence of parties, as well

as pleadings on record, Court below concluded that appellant has failed to

establish commission of physical and mental cruelty by respondent upon

appellant. Court below further concluded that since plaintiff has failed to

prove the grounds of desertion and cruelty upon which plaintiff claimed

decree of divorce, no relief prayed for by plaintiff can be granted. On the

aforesaid findings, Court below dismissed suit of plaintiff vide judgement

dated 25.8.2014 and decree dated 17.9.2014. Thus feeling aggrieved by

aforesaid judgement and decree passed by Court below, plaintiff has now

come to this Court by means of present first appeal.

9. We have heard Mr. Harish K. Yadav, learned counsel for appellant.

Though cause list was revised, none appeared for respondent even though

names of Brijesh Shukla and Arvind Kumar Tiwari, Advocates, were duly

printed in the cause list as counsel for respondent. As such we proceeded

with hearing of present first appeal by hearing learned counsel for

appellant.

10. Mr. Harish K. Yadav, learned counsel for appellant, in challenge to

impugned judgement and decree passed by Court below has submitted

that the same are manifestly illegal and liable to be quashed by this Court.

He further submits that findings recorded by court below on twin issues

namely, cruelty and desertion are wholly illegal, perverse and erroneous.

On the basis of material on record, commission of cruelty by respondent

upon appellant and further her act of deserting appellant are duly proved.

Consequently, judgement and decree passed by Court below are liable to

be set aside and suit filed by appellant for divorce on grounds of cruelty

and desertion is liable to be decreed by this Court.

11. Before proceeding to examine the submissions urged by learned

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counel for appellant, it would be appropriate to reproduce Section 13 of

Act 1955, which provides for grounds of divorce:

“" 13 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--

[(i) has, after the solemnization of the marriage, had voluntary sexual

intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner

with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less

than two years immediately preceding the presentation of the

petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

[(iii) has been incurably of unsound mind, or has been suffering

continuously or intermittently from mental disorder of such a kind and to

such an extent that the petitioner cannot reasonably be expected to live

with the respondent.

Explanation.--In this clause,--

(a) the expression "mental disorder" means mental illness, arrested or

incomplete development of mind, psychopathic disorder or any other

disorder or disability of mind and includes schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or

disability of mind (whether or not including sub-normality of intelligence)

which results in abnormally aggressive or seriously irresponsible conduct

on the part of the other party, and whether or not it requires or is

susceptible to medical treatment; or]

(iv) has, been suffering from a virulent and incurable form of leprosy; or

(v) has, been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or

more by those persons who would naturally have heard of it, had that party

been alive;

[ Explanation. In this sub-section, the expression desertion 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 wilful neglect of the petitioner by the other party to

the marriage, and its grammatical variations and cognate expressions shall

be construed accordingly.]

(viii) deleted

(ix) deleted

[(1-A) Either party to a marriage, whether solemnised before or after the

commencement of this Act, may also present a petition for the dissolution

of the marriage by a decree of divorce on the ground--

(i) that there has been no resumption of cohabitation as between the

parties to the marriage for a period of 22 [one year] or upwards after the

passing of a decree for judicial separation in a proceeding to which they

were parties; or

(ii) that there has been no restitution of conjugal rights as between the

parties to the marriage for a period of 22 [one year] or upwards after the

passing of a decree for restitution of conjugal rights in a proceeding to

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which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by

a decree of divorce on the ground,---

(i) in the case of any marriage solemnised before the commencement of

this Act, that the husband had married again before such commencement

or that any other wife of the husband married before such commencement

was alive at the time of the solemnisation of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the

presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been

guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance

Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of

Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section

488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or

order, as the case may be, has been passed against the husband

awarding maintenance to the wife notwithstanding that she was living apart

and that since the passing of such decree or order, cohabitation between

the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised

before she attained the age of fifteen years and she has repudiated the

marriage after attaining that age but before attaining the age of eighteen

years.

Explanation. --This clause applies whether the marriage was solemnised

before or after the commencement of the Marriage Laws (Amendment) Act,

1976 (68 of 1976).

STATE AMENDMENT

Uttar Pradesh.-- In its application to Hindus domiciled in Uttar Pradesh and

also when either party to the marriage was not at the time of marriage a

Hindu domiciled in Uttar Pradesh, in section 13--

(i) in sub-section (1), after clause (i) insert (and shall be deemed always to

have been inserted) the following

"(1-a) has persistently or repeatedly treated the petitioner with such cruelty

as to cause a reasonable apprehension in the mind of the petitioner that it

will be harmful or injurious for the petitioner to live with the other party; or",

and

(ii) for clause (viii) (since repealed) substituted and deem always to have

been so substituted for following.

"(viii) has not resumed cohabitation after the passing of a decree for

judicial separation against that party and--

(a) a period of two years has elapsed since the passing of such decree, or

(b) the case is one of exceptional hardship to the petitioner or of

exceptional depravity on the part of other party; or".”

12.From perusal of above quoted Section 13 of Act,1955, it is explicit

that cruelty and desertion are grounds recognised in law for granting a

decree of divorce. While cruelty as a ground of divorce is duly provided

for in Section 13 (1) (i-a) of Act, 1955, desertion as a ground of divorce is

duly provided for in Section 13 (1) (i-b) of Act, 1955. Under scheme of

Act, 1955, grounds of divorce mentioned in Section 13 are independent

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grounds. Fulfilment of one of the grounds mentioned in Section 13 of Act,

1955 by itself is sufficient to grant divorce. It may also be noted that

cruelty and desertion are independent grounds of divorce and have to be

proved independently by direct evidence. They are not inter-dependant.

However, one important factor distinguishing the aforesaid grounds of

divorce is that while there is no pre-requisite for pleading cruelty but in

case a plea of desertion is pleaded then a period of two years from date of

desertion must have elapsed prior to the date of institution of suit by

plaintiff. Period subsequent to institution of suit cannot be taken into

consideration for determining desertion on the part of respondent in a suit

for divorce.

13. The term 'cruelty' has not been defined in the Act of 1956 and

therefore, same has been subject matter of debate for long. Different

Courts in India have tried to explain meaning of term 'cruelty' and also

crystalize the actions which can constitute cruelty. In doing so varied

aspects of human nature in the changing vicissitudes of time have been

taken into consideration.

14. A Division Bench of this Court in Smt. Sarita Devi Vs. Sri

Ashok Kumar Singh reported in 2018 (3) AWC 2328 has

considered the concept of 'cruelty' in detail by referring to the meaning

assigned to the term in different dictionaries and text. Following has been

observed in paragraphs 16, 17, 18 and 19:-

“16. In Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 Court

considered the concept of cruelty and referring to Oxford Dictionary

defines 'cruelty' as 'the quality of being cruel; disposition of inflicting

suffering; delight in or indifference to another's pain; mercilessness;

hard-heartedness'.

17. In Black's Law Dictionary, 8th Edition, 2004, term "mental cruelty"

has been defined as, "a ground for divorce, one spouse's course of

conduct (not involving actual violence) that creates such anguish that it

endangers the life, physical health, or mental health of the other spouse."

18. The concept of cruelty has been summarized in Halsbury's Laws of

England, Vol.13, 4th Edition Para 1269, as under:

"The general rule in all cases of cruelty is that the entire matrimonial

relationship must be considered, and that rule is of special value when

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the cruelty consists not of violent acts but of injurious reproaches,

complaints, accusations or taunts. In cases where no violence is averred,

it is undesirable to consider judicial pronouncements with a view to

creating certain categories of acts or conduct as having or lacking the

nature or quality which renders them capable or incapable in all

circumstances of amounting to cruelty; for it is the effect of the conduct

rather than its nature which is of paramount importance in assessing a

complaint of cruelty. Whether one spouse has been guilty of cruelty to

the other is essentially a question of fact and previously decided cases

have little, if any, value. The court should bear in mind the physical and

mental condition of the parties as well as their social status, and should

consider the impact of the personality and conduct of one spouse on the

mind of the other, weighing all incidents and quarrels between the

spouses from that point of view; further, the conduct alleged must be

examined in the light of the complainant's capacity for endurance and

the extent to which that capacity is known to the other spouse.

Malevolent intention is not essential to cruelty but it is an important

element where it exits."

19. In 24 American Jurisprudence 2d, the term "mental cruelty" has been

defined as under:

"Mental Cruelty as a course of unprovoked conduct toward one's spouse

which causes embarrassment, humiliation, and anguish so as to render

the spouse's life miserable and unendurable. Plaintiff must show a course

of conduct on the part of Defendant which so endangers the physical or

mental health of Plaintiff as to render continued cohabitation unsafe or

improper, although Plaintiff need not establish actual instances of

physical abuse. "

15. In Vishwanath Sitram Agarwal Vs. San. Sarle Vishwanath

Agarwal, 2012 (7) SCC 288, Supreme Court considered various

earlier decisions with regard to meaning of term 'cruelty'. Their Lordships

observed as follows in paragraphs 22 to 32:-

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.

23. In Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa

Yasinkhan [(1981) 4 SCC 250 : 1981 SCC (Cri) 829] , a two-

Judge Bench approved the concept of legal cruelty as expounded

inPancho v. Ram Prasad [AIR 1956 All 41] wherein it was stated

thus: (Pancho case [AIR 1956 All 41] , AIR p. 43, para 3)

“3. … Conception of legal cruelty undergoes changes according

to the changes and advancement of social concept and standards of

living. With the advancement of our social conceptions, this feature

has obtained legislative recognition that a second marriage is a

sufficient ground for separate residence and separate maintenance.

Moreover, to establish legal cruelty, it is not necessary that physical

violence should be used.

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Continuous ill-treatment, cessation of marital intercourse, studied

neglect, indifference on the part of the husband, and an assertion on

the part of the husband that the wife is unchaste are all factors which

may undermine the health of a wife.”

It is apt to note here that the said observations were made while

dealing with the Hindu Married Women's Right to Separate

Residence and Maintenance Act (19 of 1946). This Court, after

reproducing the passage, has observed that the learned Judge has put

his finger on the correct aspect and object of mental cruelty.

24. In Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 105 :

1988 SCC (Cri) 60] , while dealing with “cruelty” under Section

13(1)(i-a) of the Act, this Court observed that the said provision does

not define “cruelty” and the same could not be defined. “Cruelty”

may be mental or physical, intentional or unintentional. If it is

physical, the court will have no problem to determine it. It is a

question of fact and degree. If it is mental, the problem presents

difficulty. Thereafter, the Bench proceeded to state as follows: (SCC

p. 108, para 4)

“4. … First, the enquiry must begin as to the nature of the cruel

treatment. Second, the impact of such treatment on the mind of the

spouse. Whether it caused reasonable apprehension that it would be

harmful or injurious to live with the other. Ultimately, it is a matter of

inference to be drawn by taking into account the nature of the

conduct and its effect on the complaining spouse. There may,

however, be cases where the conduct complained of itself is bad

enough and per se unlawful or illegal. Then the impact or the

injurious effect on the other spouse need not be enquired into or

considered. In such cases, the cruelty will be established if the

conduct itself is proved or admitted.”

25. After so stating, this Court observed in Shobha Rani

case[(1988) 1 SCC 105 : 1988 SCC (Cri) 60] about the marked

change in life in modern times and the sea change in matrimonial

duties and responsibilities. It has been observed that: (SCC p. 108,

para 5)

“5. … when a spouse makes a 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.”

26. Their Lordships in Shobha Rani case [(1988) 1 SCC 105 :

1988 SCC (Cri) 60] referred to the observations made in Sheldon

v.Sheldon [1966 P 62 : (1966) 2 WLR 993 : (1966) 2 All ER 257

(CA)] wherein Lord Denning stated, “the categories of cruelty are

not closed”. Thereafter, the Bench proceeded to state thus: (Shobha

Rani case [(1988) 1 SCC 105 : 1988 SCC (Cri) 60] , SCC p. 109,

paras 5-6)

“5. … Each case may be different. We deal with the conduct of

human beings who are not generally similar. Among the human

beings there is no limit to the kind of conduct which may constitute

cruelty. New type of cruelty may crop up in any case depending upon

the human behaviour, capacity or incapability to tolerate the conduct

complained of. Such is the wonderful (sic) realm of cruelty.

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6.These preliminary observations are intended to emphasise

that the court in matrimonial cases is not concerned with ideals in

family life. The court has only to understand the spouses concerned

as nature made them, and consider their particular grievance. As Lord

Reid observed in Gollinsv. Gollins [1964 AC 644 : (1963) 3 WLR

176 : (1963) 2 All ER 966 (HL)] : (All ER p. 972 G-H)

7.‘… In matrimonial affairs we are not dealing with objective

standards, it is not a matrimonial offence to fall below the standard of

the reasonable man (or the reasonable woman). We are dealing with

this man or this woman.’”

8.(emphasis in original)

9.27. In V. Bhagat v. D. Bhagat [(1994) 1 SCC 337] , a two-

Judge Bench referred to the amendment that had taken place in

Sections 10 and 13(1)(i-a) after the (Hindu) Marriage Laws

(Amendment) Act, 1976 and proceeded to hold that the earlier

requirement that such cruelty has caused a reasonable apprehension

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

him/her to live with the other one is no longer the requirement.

Thereafter, this Court proceeded to deal with what constitutes mental

cruelty as contemplated in Section 13(1)(i-a) and observed that

mental cruelty in the said provision can broadly be defined as that

conduct which inflicts upon the other party such mental pain and

suffering as would make it not possible for that party to live with the

other. To put it differently, mental cruelty must be of such a nature

that the parties cannot reasonably be expected to live together. The

situation must be such that the wronged party cannot reasonably be

asked to put up with such conduct and continue to live with the other

party. It was further observed, while arriving at such conclusion, that

regard must be had to the social status, educational level of the

parties, the society they move in, the possibility or otherwise of the

parties ever living together in case they are already living apart and

all other relevant facts and circumstances. What is cruelty in one case

may not amount to cruelty in another case and it has to be determined

in each case keeping in view the facts and circumstances of that case.

That apart, the accusations and allegations have to be scrutinised in

the context in which they are made. Be it noted, in the said case, this

Court quoted extensively from the allegations made in the written

statement and the evidence brought on record and came to hold that

the said allegations and counter-allegations were not in the realm of

ordinary plea of defence and did amount to mental cruelty.

28. In Parveen Mehta v. Inderjit Mehta [(2002) 5 SCC 706 : 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.” (Parveen Mehta case[(2002) 5 SCC 706 : AIR 2002 SC

2582] , SCC p. 716, para 21) 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

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the other.

29. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate

[(2003) 6 SCC 334 : AIR 2003 SC 2462] , it has been opined that a

conscious and deliberate statement levelled with pungency and that

too placed on record, through the written statement, cannot be so

lightly ignored or brushed aside.

30. In A. Jayachandra v. Aneel Kaur [(2005) 2 SCC 22] , it has

been ruled that the question of mental cruelty has to be considered in

the light of the norms of marital ties of the particular society to which

the parties belong, their social values, status and environment in

which they live. If from the conduct of the spouse, it is established

and/or an inference can legitimately be drawn that the treatment of

the spouse is such that it causes an apprehension in the mind of the

other spouse about his or her mental welfare, then the same would

amount to cruelty. While dealing with the concept of mental cruelty,

enquiry must begin as to the nature of cruel treatment and the impact

of such treatment on the mind of the spouse. It has to be seen

whether the conduct is such that no reasonable person would tolerate

it.

31. In Vinita Saxena v. Pankaj Pandit [(2006) 3 SCC 778] , it has

been ruled that as to what constitutes mental cruelty for the purposes

of Section 13(1)(i-a) will not depend upon the numerical count of

such incident or only on the continuous course of such conduct but

one has to really go by the intensity, gravity and stigmatic impact of

it when meted out even once and the deleterious effect of it on the

mental attitude necessary for maintaining a conducive matrimonial

home.

32. In Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] , this

Court, after surveying the previous decisions and referring to the

concept of cruelty, which includes mental cruelty, in English,

American, Canadian and Australian cases, has observed that: (SCC

pp. 545-46, paras 99-100)

“99. … The human mind is extremely complex and human

behaviour is equally complicated. Similarly human ingenuity has no

bound, therefore, to assimilate the entire human behaviour in one

definition is almost impossible. What is cruelty in one case may not

amount to cruelty in the other case. The concept of cruelty differs

from person to person depending upon his upbringing, level of

sensitivity, educational, family and cultural background, financial

position, social status, customs, traditions, religious 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

straitjacket formula or fixed parameters for determining mental

cruelty in matrimonial matters. The prudent and appropriate way to

adjudicate the case would be to evaluate it on its peculiar facts and

circumstances….”

16. In Ravi Kumar Vs. Julmi Devi 2010 (4) SCC 476, following

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was observed in paragraphs 19 to 22:-

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

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 cases can be of infinite variety—it may be subtle or even

brutal and may be by gestures and words. That possibly explains why

Lord Denning in Sheldon v.Sheldon [(1966) 2 WLR 993 : (1966) 2 All

ER 257 (CA)] held that categories of cruelty in matrimonial cases are

never closed.

21.This Court is reminded of what was said by Lord Reid inGollins

v. Gollins[1964 AC 644 : (1963) 3 WLR 176 : (1963) 2 All ER 966

(HL)] 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 case ever arising if both the spouses think and behave as

reasonable people.”

The aforesaid passage was quoted with approval by this Court

inN.G. Dastane (Dr.) v. S. Dastane [(1975) 2 SCC 326] .

22. About the changing perception of cruelty in matrimonial cases,

this Court observed in Shobha Rani v. Madhukar Reddi[(1988) 1 SCC

105 : 1988 SCC (Cri) 60 : AIR 1988 SC 121] 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 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.”

17. Reference in this regard may be made to the judgement in K.

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Srinivas Rao Vs. D. A. Deepa, 2013 (5) SCC 226 wherein

following has been observed in paragraphs 10 and16:

“10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a

marriage can be dissolved by a decree of divorce on a petition

presented either by the husband or the wife on the ground that the

other party has, after solemnisation of the marriage, treated the

petitioner with cruelty. In a series of judgments this Court has

repeatedly stated the meaning and outlined the scope of the term

“cruelty”. Cruelty is evident where one spouse has so treated the other

and manifested such feelings towards her or him as to cause in her or

his mind reasonable apprehension that it will be harmful or injurious

to live with the other spouse. Cruelty may be physical or mental.

16.Thus, to the instances illustrative of mental cruelty noted inSamar

Ghosh[(2007) 4 SCC 511] , 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 items 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.”

18. Court in N.G. Dastane V. S. Dastane (1975) 2 SCC 326

considered the concept of 'mental cruelty' and observed as follows:

"The enquiry therefore has to be whether the conduct charges 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 for him to

live with the respondent. "

19. With regard to 'mental cruelty,' reference be made to the judgement in

A. Jaya Chandra Vs. Aneel Kaur, 2005 (2) SCC 22 . The

aforesaid judgement has also been considered by a division bench in

Smt. Sarita Devi (supra) and following has been observed in

paragraph-26 of the judgement:

“26. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, Court

observed that conduct of spouse, if established, an inference can

legitimately be drawn that treatment of spouse is such that it causes

an apprehension in the mind of other spouse, about his or her

mental welfare then this conduct amounts to cruelty. Court observed

that when a petition for divorce on the ground of cruelty is

considered, Court must bear in mind that the problems before it are

those of human beings and psychological changes in a spouse's

conduct have to be borne in mind before disposing of petition for

divorce. Before a conduct can be called cruelty, it must touch a

certain pitch of severity. Mere trivial irritations, quarrels between

spouses, which happen in day-to-day married life, may also not

16

amount to cruelty.”

20. In K. Srinivas Rao Vs. D.A. Deepa (2013) 5 SCC 226, while

dealing with the instances of 'mental cruelty,' Court opined that to the

illustrations given in the case of Samar Ghosh vs. Jaya Ghosh

(2007) 4 SCC 511, certain other illustrations could be added. We think

it seemly to reproduce the observations:

"Making unfounded indecent defamatory allegations against the spouse

or his or her relatives in the pleadings, filing of complaints or issuing

notices or news items 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."

21. With the aid of meaning of the term “physical cruelty” and “mental

cruelty” this Court has now to examine the issue involved in present

appeal: Whether plaintiff-appellant was able to establish commission of

'cruelty' by Defendant-Respondent before Court below and findings to the

contrary recorded by Court below are illegal, perverse and erroneous or

not.

22. When plaint of divorce suit is examined to ascertain as to how

allegations regarding commission of cruelty by respondent were pleased,

this Court finds that same have been pleased in paragraphs 6 and 7 of

plaint. The same are reproduced herein under for ready reference:

6- ;g fd oknh dh iRuh izfrokfnuh oknh ds edku esa gh jg jgh gSA vkSj foxr

rhu c"kksZ ls vldk O;ogkj dkQh [kjkc gks x;k gS vkSj og izfrokfnuh oknh ds

lkFk csotg cxSj flj iSj dh ckrksa dks ysdj oknh ds lkFk yMrh >xMrh gS vkSj

fox~r rhu o"kksZa ls ?kj dh 'kkfUr Hkax dj nh gS rFkk vius dzwjrk iw.kZ vkpj.k ls

oknh dks ekufld :i ls mRihfMr djrh jgh gS rFkk lkFk esa iRuh /keZ nkf;Roksa

ds fcijhr vius vkpj.k o O;ogkj )kjk oknh dh lq[k 'kkfUr dks lekIr dj

fn;k gS vkSj tc dHkh oknh mls le>kus dk iz;kl djrk gS rks izfrokfnuh vius

dzwjrk iw.kZ O;ogkj o vkpj.k ls izfr{k.k oknh dks mRihfMr djrh vk jgh gSA

ftl dkj.k vc oknh izfrokfnuh ds lkFk ,d lkFk jguk lEHko ugha gSA

7- ;g fd oknh ds edku esa gh izfrokfnuh jgrh gS vkSj fox~r rhu o"kksZa ls T;knk

ls iRuh /keZ ds nkf;Roksa dk fuoZgu ugha djrh gS fQj Hkh oknh vius ifr/keZ ds

nkf;Roksa dks fuoZgu djrk vk jgk gS vkSj mls fdlh izdkj dh rdyhQ ugha nsrk

gS blds ckotwn izfrokfnuh oknh dks gj rjg ls vlR; dFkuksa )kjk lekt esa

viekfur djrh vk jgh gS fd oknh mldk Hkj.k iks"k.k ugha djrk gS mldks

ekjrk ihVrk gS vkSj [kkuk ikuh ugha nsrk gSA

That the wife of plaintiff herein called as defendant is staying in

the house of plaintiff only and her behaviour has worsened since

last three years as defendant picks up quarrel and fights with

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plaintiff without any rhyme of reason thereby disrupting the

peace and tranquillity of the house since last three years. She

had been causing mental harassment to the plaintiff by her cruel

behaviour and contrary to her duties as a wife, she has destroyed

the peace and tranquility of plaintiff by her conduct and

behaviour. Whenever plaintiff tries to reason with her, she

causes harassment to the plaintiff by her cruel and traumatic

behaviour due to which it has become impossible for plaintiff to

cohabit with the defendant.

That the defendant resides in the house of plaintiff only and has

failed to discharge obligations of a wife while on the other hand

plaintiff continues to discharge dutied of a husband and is not a

source of any discomfort to her. Despite this, defendant

continues to insult the plaintiff in society by cooking up by all

kinds of false narratives like plaintiff refuses to provide

maintenance to her, beats her and refuses to provide food as well

as nourishment to her.

(English translation by Court)

23.When allegations made in paragraphs 6 and 7 of plaint are

examined, it is apparent that they do not spell out specific instances of

'cruelty' but only allegations of 'cruelty'. We may point out that a single

instance in isolation is not sufficient for dissolution of marriage on the

ground of 'cruelty' as held by Apex Court in Neelam Kumar Vs.

Dayarani, 2010 (13) SCC 298.

24.Law on the subject now stands crystallized. Plaintiff in order to

succeed in a suit for divorce on the ground of commission of 'cruelty' by

respondent must plead specific instances of 'cruelty' or make such

allegations of 'cruelty' which if considered cumulatively, lead to a

reasonable apprehension in the mind of other that it would be harmful or

injurious to reside with other spouse. Therefore, what has to be examined

by Court in the present case is “whether averments made in paragraphs 6

and 7 of plaint satisfy the aforesaid test”.

25.Upon examination of averments made in paragraphs 6 and 7 of

plaint, it cannot be said that allegations of 'cruelty' alleged by appellant

when considered cumulatively lead to the inescapable conclusion that

they cannot cause reasonable apprehension in mind of appellant that it

would be harmful or injurious to reside with respondent.

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26.From perusal of plaint of divorce suit filed by appellant it is

apparent that divorce was instituted vide plaint dated 21.03.2009.

Therefore, as per mandate of Section 13 (1) (i-b) of Act, 1955, appellant

was required to plead that respondent has deserted plaintiff for a

continuous period of not less than two years immediately preceding the

presentation of the petition. What has been pleaded in paragraph 8 of the

plaint is to the following effect :

8- ;g fd tc oknh us fnukad 10&11&08 dks izfrokfnuh dks le>k;k fd

og mls ekufld o lkekftd :i ls vius xyr vkpj.k o O;ogkj ls

viekfur o mRihfMr u djsaA mlus oknh ds fo:) feF;k vkjksi yxkrs

gq, /kedk;k fd vc og mlds lkFk ughas jgsxh vkSj mlls Hkj.k iks"k.k ysdj

vyx jgsxh vkSj viuk LorU= thou O;rhr djsxh vkSj iRi'~pkr mlus

vlR; dFkuksa ds vk/kkj ij vUrZxr /kkjk 125 na0 iz0 lafgrk ds rgr rhuksa

okfyx cPpksa ds QthZ uke o ukckfyx mez n'kkZdj bl U;k;ky; esa Hkju

iks"k.k nkf[ky fd;k gSA

That when plaintiff counselled her to not harass him

mentally and stop insulting him in front of society by her wrong

conduct and behaviout, she threatened him while levelling false

and mythical charges that she shall no longer cohabit with him and

shall reside separately and live an independent life after taking

maintenance from him. Thereafter she filed an application under

Section 125 Cr.P.C. before this Court for maintenance mentioning

forged names of all three kids who have attained majority showing

them as minors and on the basis of false statements.

(English Translation by Court)

27.Plain reading of paragraph 8 of plaint shows that appellant alleged

that respondent has deserted appellant on 10.11.2008 from when

Appellant has started residing separately from respondent. The suit has

been instituted vide plaint dated 21.3.2009. Therefore, the pre-requisite

for grant of divorce on ground of desertion i.e. expirty of two years from

the date of desertion, has to be in existence on the date of institution of

suit has not been established by appellant. In view of above, finding

recorded by Court below that appellant has failed to establish desertion on

part of respondent for a continuous period of two years prior to institution

of suit cannot be said to be illegal, perverse or erroneous.

28. In view of discussions made herein above, it cannot be said that

findings recorded by Court below that appellant has failed to establish

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commission of 'cruelty' upon him by respondent and also 'desertion' are

illegal, perverse or erroneous. As appellant has failed to prove 'cruelty'

and desertion on the part of respondent on the basis of which he prayed

for a decree of divorce, Court below has rightly dismissed the suit of

appellant. Consequently, this appeal fails and is liable to be dismissed. It

is accordingly dismissed. Costs made easy.

Order Date :- 20.12.2019

Arshad