1

AFR

Reserved on : 06.07.2022

Delivered on : 29.08.2022

Court No. - 39

Case :- FIRST APPEAL No. - 212 of 2018

Appellant :- Smt. Sneha Pandit

Respondent :- Sri Tarun Pandit

Counsel for Appellant :- Vipin Chandra Dixit, ,Siddharth Khare

Counsel for Respondent :- Amit Krishna, Alok Tiwari,Anil

Sharma

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

1. This is wife’s appeal against the divorce decree prepared

pursuant to the judgment and order dated 21.2.2018, passed by the

family court in a suit instituted under Section 13 of the Hindu

Marriage Act' 1955 (hereinafter referred as Act' 1955), namely the

Matrimonial Petition No. 1614 of 2013, by the respondent-husband.

Introduction:-

2. The divorce petition was filed on 27.11.2013 on the

grounds of cruelty and desertion. As per the statement therein, the

parties got married on 22.11.2009 and at the time of marriage, the

respondent/petitioner was working as a Fighter Pilot in the Indian Air

Force and was posted as Flight Lieutenant in Badmer, Rajasthan. It

was stated therein that for few days after marriage, the appellant went

to stay with the respondent to the place of his posting but she could

not adjust herself. The appellant wife was studying the B.Tech

(Electronics and Instrumentation Engineering) course at the time of

marriage and with the inspiration of the respondent husband, she

could complete her studies. But after getting the degree, the appellant

started pressurizing the respondent to allow her to take up a job in the

NCR namely Delhi/Noida/Gurgaon region. It was further stated in the

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divorce petition that the family members of the appellant and the

appellant herself were clearly informed by the respondent husband at

the time of marriage itself, that she would not be allowed to take up

any employment because of the nature of the job of the respondent

and the appellant-wife and her family members had agreed to the said

condition put before marriage. It was contended therein that while

putting pressure to take up employment in a place like

Delhi/Noida/Gudgaon, the appellant wife became annoyed and

started quarreling frequently with the respondent. With a view to get

the respondent dismissed from services of the Indian Air Force, the

appellant started complaining to higher Officials of the Force and this

attitude of the appellant had resulted in undermining the position of

the respondent and he had suffered indignation. The appellant started

committing cruelty both physically and mentally upon the

respondent. On account of the ill-behaviour of the appellant, the

respondent who was working as a Squadron Leader, Flying MIG-21

and other fighter jet, started suffering mentally and physically and did

not remain in the position to discharge his responsibilities to his full

potential and devotion in the interest of the Nation. All efforts made

by the respondent/petitioner and his family members to pacify the

appellant went in vain and she remained adamant with her demands.

On account of her attitude only, the appellant could not conceive

(bear a child) and the respondent and his family members had

suffered mental stress also due to the said reason.

3. On 23.11.2011, while the respondent/petitioner was on

duty, in his absence, the brother of the appellant and one more person

came to their house at Ambala Cantt. and, in execution of their pre-

conceived plan, all valuables, jewellery, clothes, cash, diamond sets,

F.D., ATM cards, bank passbooks etc. were collected by the appellant

and she started making preparations for going to her parent's home at

3

Meerut. At that point of time, on an intimation given by the wife of

an Officer who was a neighbour, the respondent came to his house

from the duty at around 2:00 P.M. and saw that the appellant

alongwith the above two persons had already kept her luggage in a

car and was ready to go to Meerut. All efforts made by the respondent

to persuade the appellant (wife) proved futile and the appellant started

misbehaving with him, remained adamant and left the respondent

(husband) as against his wishes to go to her parent's home. The

information of this incident was given by the respondent to his

parents, who also went to the house of the appellant at Meerut and

tried to persuade her. It was stated that the appellant refused to listen

to anyone and remained adamant on her demand that she wanted to

take up a job in Delhi/Noida/Gudgaon area and if the respondent

wished he could leave his job to live with her, which was not possible

for the respondents.

4. It was further stated in the petition that after 23.11.2011,

despite best efforts made by the respondent and his family members

to persuade the appellant and her family members, no possible

solution could come out and the appellant remained adamant and

refused to discharge her marital obligations. It is finally stated that on

account of the above attitude of the appellant, her behavior, use of

abusive language, the respondent had suffered severe mental stress

and indignation at the hands of the appellant which undermine his

position in front of his superiors, resulting in mental cruelty

committed upon him. Due to the attitude of the appellant, the

respondent could not undertake examination for promotion and his

promotion got delayed. By the action and behaviour of the appellant,

respondent had suffered severe mental stress which came within the

meaning of 'cruelty' under the legal parlance. For her personal

motives, the appellant had deserted the respondent for a period of

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more than two years which also fell within the meaning of 'cruelty'.

5. It was further contended therein that despite all efforts

made by the respondent, the appellant did not agree to grant divorce

by mutual consent and hence, the respondent was constrained to file

the divorce petition. The cause of action for filing the divorce suit

arose on 22.11.2009 when the appellant while living with the

respondent had committed cruelty on him by all means and started

pressurizing him to agree to her demand to take up a job in NCR and

also on 23.11.2011 when she had left for her paternal home along

with her brother as against the wishes of the respondent and lastly on

25.11.2013 when she had refused to live with the respondent.

6. The appellant in her written statement had denied all the

allegations levelled in the divorce petition and only accepted the

factum of marriage. The plea of desertion had been categorically

denied with the assertion that the appellant had filed a restitution

petition under Section 9 of the Hindu Marriage Act before the

competent court registered as Case No. 993 of 2013, which was

pending and in the Mediation proceedings also, the appellant had

expressed her wishes to go along with the respondent and live with

him as his wife. It was further stated therein that the appellant was

still ready and willing to live with the respondent and discharge her

wifely duties.

7. It was further contended that in the month of February,

2013, both the parties spent time together as husband and wife and

mental as well as physical relationship were established between

them. On 5.7.2013, the appellant went to her in-law's house and

stayed there till 8.7.2013 in an effort to save her marriage. But she

was left by the said relatives of the respondent at her paternal home

giving her assurance that they would call her very soon. It was stated

in the written statement by the appellant-wife that she was always

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ready and willing to live with the respondent and discharge her

responsibilities, even after 23.11.2011 and the plea of desertion

without any cause or reason on her part was false.

8. A disclosure had been made therein that the appellant-wife

had lodged a criminal case under Section 498-A, 323, 504, 506, 377

I.P.C. and 3/4 of D.P. Act on account of ill behaviour of the

respondent and physical assault made on her, which was registered as

Case Crime No. 84 of 2014 at the Mahila Police Station, Meerut.

However, she was ready and willing to forgive the respondent and

live with him as his wife.

Opinion of the Family Court:-

9. Three witnesses were examined before the family Court,

respondent-husband as PW-1, appellant-wife as DW-1 and mother of

the appellant as DW-2. Various documentary evidences were filed by

both of the parties in support of their stand before the family court.

10. The family court on the basis of the pleadings of the parties

framed following issues for determination:-

(i) Whether the marriage solemnized between the parties is liable to

annulled on the ground of cruelty by the defendant appellant?

(ii) Whether the defendant had deserted the plaintiff without any

reason?

(iii) Whether the plaintiff respondent is entitled to any other relief?

11. On issue no.1, the family court concluded that the act of the

appellant wife in making complaint to higher officials of the Air

force, the assertive behaviour of the wife pressuring the respondents

frequently to go out of the Air Force station, her act of filing of the

criminal cases against the respondent husband and institution of the

case under Section 125 Cr.P.C. despite getting maintenance from the

6

department making a reckless allegations against the respondent that

he was not appearing in the case under Section 9 of the Hindu

Marriage Act' 1955, false allegations levelled against the husband of

unnatural sexual assault, the allegations of SMS of other girls on the

mobile set of the respondent and character assassination of the

respondent on the part of the wife amounted to mental cruelty. In

such a situation, it was not possible for the respondent husband to

spend his life with the appellant wife. The issue No.1 on the ground

of cruelty by the wife had been decided in favour of the plaintiff

respondent.

12. While coming to the aforesaid conclusion, the family court

has discussed that the unreasonable demand of the wife to go out of

Air Force Station as against the disciplined life of a Squadron leader

and insisting to take up job at places like Delhi, Noida and Gurgaon

(NCR) became a vindictive act on the part of the wife which had

resulted in causing physical and mental cruelty to the husband. It was

also noted that when the respondent husband did not accede to

unreasonable demand of the appellant wife, she in order to get him

dismissed from service made complaints to higher officials of the

respondent which had resulted in derogation of the position of the

husband and undermined his dignity.

13. It was also noted by the family court that the wife had filed

a criminal case under Section 498-A, 323, 504, 506, 377 IPC and

Section ¾ D.P. Act making reckless and false allegations against her

husband. A petition under Section 9 of the Act' 1955 was also filed

by the wife with the aim to make out a case against the husband. On

the final report submitted by the Investigating Officer in the criminal

case lodged under Section 498-A and Dowry Prohibition Act, a

protest petition was filed by the respondent wife whereupon re-

investigation was ordered by the competent court. The Investigating

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Officer again submitted a final report, whereafter, another protest

petition was filed by the wife. False cases under the Domestic

Violation Act and Section 125 Cr.P.C. were filed though the

appellant wife was getting interim maintenance from the department,

itself. The allegations made in the first information report lodged by

the appellant wife were taken note of by the family court to record a

finding that the appellant wife had failed to establish the allegations

made by her and all those acts of the wife had caused mental agony to

the respondent plaintiff. The respondent being a Squadron Leader in

the Air Force could not discharge his duties properly as his mental

peace was shattered at the hands of his wife.

14. On issue No.2 about desertion, it was recorded by the

family court that the appellant admitted that she had left the place of

posting of the respondent husband on 21.11.2011 alongwith her

brother Mohit Dixit and cousin Sushil Sharma. In a complaint filed

by the appellant wife to the superior officers of the Air Force Officer,

it was stated that the marital discord between the parties was of such

nature that no reconciliation was possible between them. As a result

of it, the department had ordered for payment of interim maintenance

to the appellant wife. It is, thus, recorded by the family court that

once the wife herself went to the senior Air Force Officer making a

statement that marital discord between them was irreparable, her

statement that she had discharged her marital obligation up till

February 2013 was contradictory. The act of the appellant wife in

going to the place of posting of the respondent in January 2016 after

filing of the divorce petition was viewed with suspicion by the family

court to record a finding that there was no justification for the

appellant wife to go to the place of posting of the respondent husband

when she herself was making allegations of assault by her husband by

filing a criminal case against her husband. The said act of the

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appellant wife was aimed to fulfill her other ulterior motives. It was

concluded that there was no reason to accept that by doing so, the

appellant wife was making an effort for reconciliation and, moreover,

there was no possibility of both the parties living together.

15. It was, thus, concluded by the family court that in view of

the admission of the appellant wife that she was residing separately

w.e.f 21.11.2011, the period of two years of desertion on the part of

the wife, at the time of filing of the divorce petition on 27.11.2013

having been completed, desertion on the part of wife was proved. The

issue No.2 with regard to the desertion by the wife was, thus,

concluded in favour of the respondent husband.

16. With the aforesaid findings, a decree of dissolution of

marriage wef 21.02.2018 was passed by the family court giving

permanent alimony of Rs.25 lacs to the respondent wife.

Submissions of the Counsels for the appellant:-

17. Challenging the findings returned by the family court, Sri

Siddharth Khare learned counsel for the appellant submits that the

respondent husband had filed the divorce petition on the trivial issues.

The allegations of cruelty were reckless in nature and the family court

had ignored that the respondent himself was causing cruelty on his

wife and was trying to take advantage of his own wrong by filing the

divorce petition. It was argued that the allegations in the divorce

petition that the respondent husband encouraged the appellant wife to

complete the B.Tech course and the appellant was adamant to

undertake an employment in Delhi, Noida, Gurgaon (NCR) against

the wishes of the respondents are itself contradictory. Further

contention in the divorce petition that the respondent at the time of

marriage itself, made it clear that the appellant wife would not take

up employment after marriage is a reflection of male chauvinism. The

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only allegation against the appellant wife was that she was pressing

hard and insisting to take up employment outside the Air Force

Center.

18. The contention is that the allegations in the divorce petition

of the complaint made by the appellant wife to the Senior Officers of

the Air Force could not be proved by the respondent husband, rather

the truth is that on 23.11.2011, the appellant wife was thrown out of

her matrimonial house at Ambala Cantt by the respondent husband.

She had to call her brothers who could reach in the evening to rescue

her as the respondent did not allow the appellant to enter inside the

house. It is argued that the appellant wife has taken a categorical

stand that she made all efforts of reconciliation by meeting her in-

laws and even went to stay with them for three days in July 2013, but

the respondent did not meet her before the divorce petition was filed

by him. It is then argued that the allegations in the divorce petition

that the first information report under the Dowry Act and Section

498-A IPC was lodged on false allegations and the act of the

appellant wife in filing protest petitions against the final reports twice

had caused cruelty, is nothing but a whimsical approach of the family

court in dealing with the entire issue with pre-determined mind and

pre-conceived approach against the appellant.

19. The submission is that the respondent husband, in his cross-

examination, had admitted that he did not make any effort for

reconciliation and never visited his wife after 23.11.2011 who was

living with her parents at Meerut till the matter was brought before

the family court in the divorce petition. The contention is that this is a

classic case of desertion of the wife by her husband on some trivial

issues and then filing the divorce petition on false allegations of

cruelty. It is argued that the conclusion drawn by the family court

both on the grounds of cruelty and desertion cannot be sustained. The

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appeal is liable to be allowed while setting aside the divorce decree

granted by the family court.

20. Reliance is placed on the decision of this Court in First

Appeal No.31 of 2007 to submit that the element of 'cruelty' cannot

be found from the allegation made in the divorce petition. Mere

trivial 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. It is argued that there is no instance

of any act or conduct of the appellant wife which could be said to

have caused injury to the mental health of the plaintiff.

21. The contention is that in absence of any pleadings in the

plaint, the divorce could not be granted on the ground of commission

of cruelty because of the allegation of false criminal proceedings

instituted by the wife against the husband. The contention is that there

is absolutely no allegation in the divorce petition which amounts to

cruelty by the wife.

Submissions of the Counsel for the respondent:-

22. Sri Amit Krishna learned counsel for the respondent, in

rebuttal would submit that the respondent was constrained to file

divorce petition in November 2013 when all efforts of reconciliation

between the parties failed. The respondent and his family members

met the appellant and her family members on several occasions after

23.11.2011 when she had left the house of the respondent at Ambala.

Many efforts were made by the family members for reconciliation

between the fighting couple but the appellant remained adamant on

her demand and was not ready to discharge her matrimonial

obligations. The act of the appellant in making complaints to Senior

Officials in the Air Force had caused bitterness in the mind of the

respondent. This act of the wife had seriously hampered the career

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prospects of the respondent and his image/status was brought down in

the eyes of his seniors. He argued that on 23.11.2011, the wife had

left her matrimonial house at Ambala alongwith his brother and a

relative in the presence of the respondent husband and did not accede

to his request to stay with him. She had also filed the criminal case on

false allegations of demand of dowry and other atrocities wherein

final reports were submitted twice by the Investigating Officer and

protest petition on both the occasions were filed by the wife just to

harass the respondent husband.

23. It is, thus, argued that the stand of the wife that she was

ready and willing to reside with her husband to discharge her

matrimonial obligations runs contrary to the stand taken by her in

filing the criminal cases. The allegations in the criminal cases caused

mental agony to the respondents so much so that restoration of

marriage is totally unworkable which has seized to be effective and

would be a greater source of misery for the parties. The marriage

between the parties had broken down irretrievably and there is no

chance of their coming together or living together again. As an

instance of mental cruelty, it is submitted by the learned counsel for

the respondent that the act of the wife in pressurizing the respondent

to allow her to take up jobs in NCR (Noida, Delhi, Gurgaon) and to

reside outside the Air Force Station, caused mental agony to the

husband who had made it clear in the beginning of the alliance itself

that being a fighter pilot he has to stay at the Air Force Station and

according to the norms of social life of an Air Force Officer, the

appellant his wife, had to stay with him.

24. The complaints made by the wife to Senior Officials of the

Indian Air Force had resulted in harassment and torture to the

husband as his character and reputation at his workplace was brought

down. Making such complaints is sufficient to constitute mental

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cruelty caused by the wife. The career prospects of the respondent

had been seriously hampered as he could not get promotion in time.

The respondent was, thus, constrained to file the divorce petition and,

thereafter, the appellant in order to harass him moved the Air Force

department for interim maintenance with the assertion that marital

cord between them was completely broken. At the same time, she

filed a criminal case under the Dowry Act, 498-A, 323, 504, 506 &

377 IPC on reckless and false allegations. Her complaint was found

false and a final report was submitted by the Investigating Officer on

17.04.2015. The appellant filed a protest petition wherein an order for

re-investigation was passed. Again a final report was submitted on

02.02.2016 by the Investigating Officer when protest petition was

filed by the wife. A case under Section 9 of the Act' 1955 was also

filed by the appellant in the year 2013 wherein she had admitted that

there was no relationship of husband and wife between them from

23.11.2011 onwards and the couple had never lived together

thereafter. The contention is that the act of the appellant in filing

application under Section 125 Cr.P.C. seeking for maintenance

though she was already receiving maintenance from the department;

lodging of the false FIR; filing protest petitions after submission of

final reports by the Investigating Officer, on one hand, and moving

petition under Section 9 of the Act' 1995, on the other, shows her

dubious character. Her statement that she was ready and willing to

forgive all previous issues and would live with the respondent

peacefully cannot be substantiated from her conduct and actions.

25. It is further pointed out that the appellant went to the Air

Force Station in January 2016 without any reason and tried to enter

forcibly in the house of the respondent when a report was given to the

Superintendent of Police and the Commanding Officer, Air Force by

the respondent. It is, thus, argued that consideration in the totality of

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the conduct and behaviour of the wife clearly established that she had

caused mental cruelty upon her husband by making unreasonable

demands, complaints to the Senior Officials, filing of false criminal

cases and then pressurizing the respondent to live with her, and make

out a clear case of mental cruelty caused by the wife. The result is

that it is not possible for the respondent to continue with the

matrimonial relationship in the circumstances like this. The

respondent, a wronged party, cannot be expected to continue with the

matrimonial relationship and there is enough justification for him to

seek separation.

26. Reliance is placed on the judgement of the Apex Court in

A. Jayachandra vs. Aneel Kaur

1

, Vishwanath Sitram

Agarwal Vs. San. Sarle Vishwanath Agarwal

2

, K. Srinivas

vs K. Deepa

3

, to submit that the mental cruelty as discussed in the

aforesaid decisions has to be culled out on consideration of complete

matrimonial life of the parties. The illustrations given by the Apex

Court in Samar Ghosh vs Jaya Ghosh

4

have been taken note of

therein to record as to what may amount to mental cruelty. The

submission is that the circumstances of the present case are all

covered in the decisions noted above and having gone through the

same, it can be safely concluded that the act of the appellant caused

mental cruelty to the respondent.

27. Further judgements of the Apex court in Shamim Bano

vs Asraf Khan

5

, K Srinivas Vs. K. Sunita

6

; Dinesh Nagda

Vs. Santibai

7

, Manisha Srivastava Vs. Rohit Srivastava

8

;

and a judgement of the High Court of Delhi in the Family Court

1. AIR 2005 SC 534

2. 2012 (7) SC 288

3. 2013 (5) SCC 226

4. 2007 (4) SCC 511

5.2014 (7) SCC 740

6.2014 (16) SCC 34

7.AIR 2012 MP 40

8.2015 (2) ADJ 547

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Appeal, dated 10.03.2022 have been placed before us to assert that

false complaints of demand of dowry or any criminal nature results in

harassment and torture to the husband and can be construed as mental

cruelty within the meaning of Section 13 (1) (ia) of the Act' 1955.

Further the decision in Devesh Yadav S. Smt. Minal

9

of the

High Court of Punjab & Haryana and the Apex Court judgement in

Joydeep Majumdar vs Bharti Jaiswal Majumdar

10

have been

pressed into service to argue that derogatory complaints made by the

wife affecting the career progress of the husband amounted to cruelty.

Analysis of Evidence:-

Allegations from marriage to separation between

22.11.2009 till 23.11.2011.

28. Having heard learned counsel for the parties and perused

the record, we may note certain factual aspect of the matter at the

outset. There is no dispute between the parties that their marriage

was solemnized on 22.11.2009 and at the time of marriage, the

respondent was a fighter pilot in the Indian Air Force and was posted

as Flight Lieutenant in Badmer, Rajasthan. Both the parties lived

together till 23.11.2011 at different places of the posting of the

respondent. Though the allegations of the respondent is that the wife

lived with him reluctantly and was adamant to take up employment at

a place like Delhi, Noida and Gurgaon (NCR) after she had

completed B.Tech course. The respondent also stated that the wife

was studying B.Tech at the time of marriage and she could complete

the course after marriage with the support of the respondent.

29. Though there are assertions in the divorce petition that the

wife being annoyed by the denial of the respondent to permit her to

take jobs in NCR, started making complaints to the higher officials of

9. FAO-M 208 of 2013

10. 2021 SCC 3 742

15

the Air Force, with the aim and object of getting the respondent

removed from service but there is not a single instance of any oral or

written complaint made by the wife to Senior Air Force officers prior

to 23.11.2011, i.e. during the period when she was living with the

respondent at the Air Force station. The averments in this regard in

the affidavit of the respondent filed in his examination in chief are

vague.

30. In cross, the respondent as PW-1 stated that his wife made

false complaints while staying at the Air Force Station Uttarlai and

then stated that it was an oral complaint. He further admitted that no

written complaint was given by the wife at the Air Force Station

Uttarlai. On a further query, he stated that on the oral complaint of

the wife, no written explanation was called from him by his senior

officers. He also admitted, in cross, that there is no mention of the

oral complaint made by the wife at the Air Force Uttarlai either in the

divorce petition or in his affidavit filed in the examination in chief. A

suggestion was, thus, given to the respondent that the statement with

regard to the oral complaint made by the wife was made only to give

colour to the case. Apart from the bald allegation of one such

complaint, no specific allegation of any complaint made by the wife

before 23.11.2011 when she had allegedly left her matrimonial home

on her own volition, was made or proved by the respondent.

31. As regards the allegations of the respondent that the wife

after completion of B.Tech course was adamant to take up a job at

NCR, it may be noted that the statement in this regard has been

categorically denied by the wife in her written statement and stated in

the examination in chief that after marriage she was residing with her

husband at the place of his posting and as a result of it, her visits to

Meerut were very few. She was discharging wifely duties and

obligations.

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32. In cross, the appellant stated that the respondent was posted

in Uttarlai, Rajasthan, she went to live with him and undertook a job

for three months inside the Air Force centre with the consent of her

husband. When her husband was transferred to Ambala she had quit

the job. In the entire cross-examination of the appellant, she has not

been confronted on her alleged demand to take up employment in

NCR namely Delhi, Noida and Gurgaon after completion of the

B.Tech course. The stand of the respondent in the complaint that the

dispute between them after marriage began on account of the demand

raised by the wife to undertake employment outside the Air Force

Station, especially in NCR, could not be established by the

respondent. As per the respondent, the appellant left her matrimonial

home on 23.11.2011. Prior to 23.11.2011, since after marriage, only

allegations against the appellant was that she was not agreeable to

stay with her husband (respondent) at the place of his posting, at the

Air Force Station and being B.Tech qualified she was insisting to take

up employment, leaving the respondent alone at the Air Force

Station, though categorical clarification was given by the respondent

at the time of the marriage that looking to his status, the wife would

not allow to do job after marriage. The assertion of the respondent is

that when the respondent refused to accede to the request of his

wife/appellant to go outside the Air Force Station to take up a job, she

started making his life hell and made complaints to higher officials of

the Indian Air Force. The family members and the respondent himself

tried to persuade the appellant but she did not listen to anyone. For

this part of the allegations made by the respondent, from the above

analysis of the evidence on record which is oral, none of the

allegations noted above could be proved by the respondent.

33. The relationship, however, took an ugly turn on

23.11.2011, when the appellant went to her paternal house alongwith

17

her brother and cousin. The stand of the respondent in the divorce

petition is that on the said day, i.e. on 23.11.2011 while the

respondent was on duty, in his absence, the appellant alongwith his

brother Mohit Dixit and one other person, in a planned manner

collected all valuables, jewelry, clothes, cash, diamond set, FD,

ATM card, bank pass book and started making preparation to go to

Meerut to her parent's home. The respondent got information through

a neigbour and reached at his house at around 02.00 PM. He then saw

that the appellant alongwith his brother and another person was ready

to go to Meerut and her entire luggage was kept in the car. The

respondent did his best to persuade the appellant not to leave him but

she started misbehaving with the appellant in front of other people

collected on the spot and did not listen to anyone and left her

matrimonial home in order to desert the respondent against his

wishes. Narrating the incident occurred on 23.11.2011, the appellant

wife, however, stated that her husband had deserted her since

23.11.2011 without any reason and the respondents refused to keep

her with him as his wife.

34. In her cross-examination, the appellant stated that on

23.11.2011 she was in the house of her husband (her matrimonial

home) at Ambala till evening. Her husband was on duty but came

home early. She called her brother Mohit Dixit and cousin Suhil

Sharma as her husband threw her out of the house and despite

repeated requests, he did not allow her to enter inside the house. She

called her brother through telephone in the afternoon and her brother

and cousin reached around evening. On further confrontation, the

appellant as DW-1 stated that when she made the telephone call, her

husband already came back from the duty and threw her out of the

house.

Allegations of desertion by wife after 23.11.2011:-

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35. The debate, thus, is as to whether the appellant wife had

left the respondent husband on her own volition, or she was thrown

out of her matrimonial home. In this regard, it may be noted that

according to the respondent, soon after the appellant had allegedly

left her matrimonial home on 23.11.2011, he gave information of the

incident to his parents at Meerut. They also tried to persuade the

appellant but the appellant and her parents insisted that the appellant

would take up an employment in Delhi, Noida, Gurgaon and if the

respondent wished he could live with her after leaving his job, which

was not possible for the respondent.

36. The respondent then gave an information to the Air Force

Commanding Officer about the incident of his wife leaving his home

by moving an application on 25.11.2011, within two days of the wife

leaving his home. The said application is on record as paper no.45

Ga/2 and 45Ga/3. In the said application, the respondent stated about

the incident which happened on 23.11.2011 at his place of residence

when his wife Mrs. Sneha Pandit had gone to her father's home

alongwith her brother Mohit Dixit who came to take her. He then

stated therein that he wanted to place it on record that he was

unaware of the activity which was planned by his wife and Mohit

Dixit. The respondent was not told about the arrival of his brother-in-

law Mohit Dixit who also did not speak to him when the respondent

reached his home from his workplace at about 02.00 PM. He found

that his wife was ready to leave after packing up all her bags with Mr.

Mohit Dixit. The respondent then stated that he tried and requested

his wife to stay back because he wanted to live with her. His own

brother-in-law and sister also came and tried to persuade the appellant

to stay back but she did not listen to anyone and left with her brother.

The respondent then stated that he wanted to bring to the notice of the

Commanding Officer by writing that letter that his wife had taken

19

away all her clothes, valuables, Sarees, Gold Jewelry of 200 grams

and one diamond set of Rs.2,50,000,/- SBI F.D. of 3,50,000/-; ATM

card and cheque book and passbook of SBI account wherein balance

at that point of time was Rs.25,000/- and Rs. 5000/- in cash which

was kept for household expenditure.

37. The respondent lastly stated in the said application that the

involvement of the appellant and his brother-in-law and planned

activity of the said kind proved hindrance in his effort to lead a happy

married life. This application lastly noted that the above noted

information was for the kind intimation to the Commanding Officer

and for future record.

38. We may further note that the father of the respondent

namely Ram Gopal Sharma also moved an application dated

29.11.2011 before the Assistant Police Commissioner, Ambala Cantt.

The statements therein are that he was father of Tarun Pandit (the

respondent) who was Fighter Lieutenant in the Air Force posted at

Ambala Air Force Station. His daughter-in-law Sneha

Pandit/appellant herein was not acceding to any suggestion or request

of the family members and was making all efforts to harass them. She

was fighting on trivial issues and did not trust her husband. They

were making efforts for the last two years to improve the relationship

between his son and her wife but his daughter-in-law Sneha Pandit

was not ready to listen to anyone. The complainant Ram Gopal

Sharma stated therein that he was residing at Meerut and on

28.11.2021, when he came to meet his son he got to know about the

incident occurred on 23.11.2011, where his daughter-in-law had left

her matrimonial home after packing all valuables, clothes and cash.

The submission therein is that the son of the complainant, namely the

respondent herein, made all efforts to persuade his wife and brother-

in-law but they did not listen to her. An apprehension was then raised

20

by Ram Gopal Sharma that after reaching Meerut, his daughter-in-

law /appellant herein would make a false complaint in order to harass

them and hence he brought the facts to the knowledge of the police

authority. The record further indicates that the said complaint was

consigned to record with the report dated 27.01.2012 wherein it was

noted that no untoward incident was reported to have occurred on

23.11.2011, in the investigation conducted by the police officials after

lodging of the complaint.

39. We may further note that within two years of the incident

dated 23.11.2011, when the appellant wife had allegedly left her

matrimonial house on her own volition, the respondent moved an

application on 13.01.2013 to the concerned officers at the Air Force

Station, seeking for allotment of a proper living-in-accommodation. It

is stated in the said application that on account of some personal

problem, it was not possible for him to stay in a living-out-

accommodation. Living-out-accommodation for our record is an

accommodation for the married couple whereas living-in-

accommodation is an accommodation for a single person.

40. While all that was happening between the couple, the

respondent PW-1 stated in his deposition that he moved the

application for leaving the “living out accommodation” and allotment

of “single officer accommodation” on 30.01.2013, since the appellant

had refused to come and live with him at the Air Force Station for

about two years, inspite of the best efforts made by him.

41. In the cross-examination, PW-1 was put to cross on the

averments made by him in paragraph No.'11' of the affidavit filed in

his examination in chief. The respondent (PW-1) admitted that he had

never talked to the appellant for compromise after 23.11.2011. He

then stated that since he had to remain on duty, his parents had a talk

of compromise and kept on their efforts to reconcile between the

21

couple for about two years. All meetings in that regard were held at

Meerut and he could know the outcome of those meetings through his

parents. On further confrontation, the respondent admitted that

whatever was stated in paragraph No.'11' of the affidavit in the

examination-in-chief was correct and he never met the appellant to

talk about any compromise. He also admitted in the same breath, that

he did not talk to his wife before filing of the divorce petition and

straightway went to the Court. He further admitted that the talk about

the divorce by way of mutual consent was made only after the

divorce suit was filed and he did not talk to his wife about the divorce

prior to the institution of the divorce suit.

42. While explaining his conduct in writing the letter dated

25.11.2011 to the Commanding Officer, the respondent (PW-1) stated

that he wanted to keep his wife with him on 23.11.2011, 24.11.2011

and 25.11.2011 and with that view of the matter, the said letter was

sent. The suggestion that the said letter was written for his own

protection, was denied by PW-1 (respondent). The respondent also

admitted that he did not provide any maintenance to his wife after

23.11.2011 till October 2013.

43. The respondent further denied that he lived with his wife in

January or February 2013 and also denied that he ever went to the

house of his wife at Noida in those months and they had cohabited.

44. The appellant, on the other hand, made a categorical

statement that her husband had deserted her on 23.11.2011 when she

objected to the ill behaviour of her husband, both physical and

mental. The appellant also filed a petition under Section 9 of the Act'

1955 in order to save her marriage. It was further stated by the

appellant in her examination-in-chief, that on 05.07.2013, she went to

the house of her in-laws, parents of the respondent, at Meerut with a

view to save her marriage and stayed there for a period of three days

22

from 05.07.2013 till 08.07.2013, in the absence of her husband.

However, on 08.07.2013, the family members of the respondent sent

the appellant to her parent's house saying that they would talk to the

respondent and then call her within 2-3 days. No-one called or came

to call the appellant since thereafter. She stated that the respondent

had deserted her without any reason or reasonable cause and rather

she was the one who had made all efforts to save her marriage.

45. In the cross-examination, DW-1, the appellant, on

confrontation, further stated that she came to Meerut alongwith her

brothers as her husband refused to keep her. She then stated that the

report of the said incident was not given by her at the police station

Ambala Cantt rather the Commanding Officer of the Air Force

Station who was present on the spot was intimated. She categorically

stated that she was deserted by her husband and the assertion that she

had left her matrimonial home alongwith her brothers on her own

volition was incorrect.

46. From the pleadings and the evidence led by the parties,

though it remains a debatable issue as to who (amongst the couple)

was at fault but the fact remains that after the appellant had left her

matrimonial home in the company of her brothers on 23.11.2011, the

respondent had never met her nor made any effort to persuade her to

rejoin him. No legal remedy for restoration of the matrimonial cord

was initiated by the respondent. The assertion made by the

respondents about the efforts made by him to persuade his wife in his

divorce petition and the affidavit in the examination-in-chief was put

to him in the cross-examination and he admitted categorically that he

never met the appellant nor went to Meerut where the appellant was

living with her parents after 23.11.2011. The statement of the

respondent that all efforts made by him after 23.11.2011 to resolve

the dispute between him with his wife with the help of his family

23

members in his petition and the affidavit is, thus, found to be false.

The respondent soon after the expiry of the period of two years and

five days from the date of the incident dated 23.11.2011, the day of

alleged desertion by the wife, had filed the divorce petition under

Section 13 of the Act' 1955 in the Family Court at Meerut on

27.11.2013. There is no whisper in the divorce petition that the

respondent made any effort to meet his wife at Meerut or made any

effort for reconciliation before filing of the divorce petition with his

affidavit dated 27.11.2013. The assertion in the divorce petition that

further cause of action arose on 25.11.2013 for filing the divorce

petition when the appellant refused to live with him, was, thus,

proved to be false.

Law of desertion:-

47. Section 13(1)(ib) of the Act' 1955 provides for grant of

divorce on the ground of desertion for a continuous period of not less

than two years immediately preceding the presentation of the petition.

The provision stipulates that the husband or wife would be entitled

for a dissolution of marriage by the decree of divorce if the other

parties had deserted the parties seeking the divorce for a continuous

period of not less than two years immediately preceding the

presentation of the petition.

48. To deal with the concept of desertion, the Apex Court in

Savitri Pandey Vs. Prem Chandra Pandey

11

has stated that:-

"Desertion", for the purpose of seeking divorce under the Act, means

the   intentional   permanent   forsaking   and   abandonment   of   one

spouse   by   the   other   without   that   other's   consent   and   without

reasonable cause. In other words it is a total repudiation of the

obligations of marriage. Desertion is not the withdrawal from a

place   but   from   a   state   of   things.  Desertion,   therefore,   means

11. 2022 (2) SCC 73

24

withdrawing from the matrimonial obligations, i.e., not permitting

or allowing and facilitating the cohabitation between the parties.

The   proof   of   desertion   has   to   be   considered   by   taking   into

consideration the concept of marriage which in law legalises the

sexual relationship between man and woman in the society for the

perpetuation of race, permitting lawful indulgence in passion to

prevent licentiousness and for procreation of children. Desertion is

not   a single   act  complete  in  itself,   it  is  a  continuous   course   of

conduct to be determined under the facts and circumstances of each

case. After referring to host of authorities and the views of various

authors,   this   Court   in   Bipinchandra   Jaisinghbhai   Shah   v.

Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the

other in a state of temporary passions, for example, anger or disgust

without intending permanently to cease cohabitation, it will not

amount to desertion.”

49. The desertion, in its essence, means the intentional

permanent forsaking and abandonment of one spouse by the other

without that other's consent, and without reasonable cause. For the act

of desertion so far as the deserting spouse is concerned, two essential

conditions must be there (i) the factum of separation and (ii) the

intention to bring cohabitation permanently to an end (animus

deserendi). Similarly two elements are essential as far as the deserted

spouse is concerned: (i) the absence of consent, and (ii) absence of

conduct giving reasonable cause to the spouse leaving the

matrimonial home to form the necessary intention aforesaid.

50. It was observed by the Apex Court in Dr.(Mrs.) Malathi

Ravi, M.D vs Dr. B.V . Ravi M.D

12

that for holding desertion

as proved 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

12. 2014 (7) SCC 640

25

by those acts or by conduct and expression of intention, both anterior

and subsequent to the actual acts of separation.

51. Meaning thereby, the Court on the basis of acts, conduct

and expression of intention by the parties, both prior to and

subsequent to the actual acts of separation, can draw an inference

from the proven facts and circumstances that the deserting spouse had

the intention to bring cohabitation permanently to an end, without the

consent of the deserted spouse. For the deserted spouse, it was

required to be proved that the act of desertion was without his consent

and there was no such conduct of the deserted spouse giving

reasonable cause to the spouse (deserting spouses) for leaving the

matrimonial home to form the necessary intention to bring

cohabitation permanently to an end. In simple words, it can be

described to be an unilateral act of the deserting spouse, without the

consent of his/her partner and in absence of any conduct of the

deserted spouse which may have lead to the act of the deserting

spouse.

Findings on the issue of desertion:-

52. In light of the law relating to the concept of desertion, in

the factual matrix of the instant case, having noted each and every

circumstance brought on the record, we find that the evidence on

record is insufficient, to come to a conclusion even on probability that

the wife deserted her husband, the respondent, with the intention to

bring the matrimonial relationship to an end. The allegations of the

respondent that his wife/appellant had left her matrimonial house

without his consent and in absence of his conduct giving reasonable

cause to the wife to leave her matrimonial home, could not be proved

by the respondent in the present case. Rather the situation looks

otherwise. The wife after leaving her matrimonial home on

23.11.2011 on account of the act of the respondent (as per her

26

contention) to throw her out of the house, made efforts to resolve the

matter. She even went to the house of her parents-in-law to reside

there for three days in the absence of the respondent, in order to

persuade them to bring the dispute to an end. She filed restitution

petition under Section 9 of the Act' 1955, participated in the

mediation proceeding showing her willingness to live with her

husband. Since the allegations of the appellant was that she was

thrown out of her matrimonial home by the respondent and then she

called her brother to go to Meerut, the admission of the respondent

that he never went to Meerut to bring back his wife after 23.11.2011

and before filing of the divorce suit, i.e. for a period of two years,

gave a clear indication of the fact that the respondent never wanted to

patch up with his wife and his version that the wife had left her

matrimonial home on her own volition, thus, seems to be

unbelievable.

53. The family court has committed illegality in twisting the

entire evidence and ignoring the version of the respondent, in

returning a finding of act the of desertion by the appellant wife, while

deciding the said issue in favour of the respondent husband. The

discussion made by the family court to return the findings on issue

No.2 that the appellant wife had deserted her husband without any

reasonable cause, is capricious and whimsical. Mere fact that the

appellant had moved an application before the officers of the Air

Force seeking interim alimony after filing of the divorce suit by the

respondent could not have been viewed against the wife. As regard

the statement about the marital discord between them having been

reached at such level that no reconciliation was possible, it was the

statement recorded in the order dated 15.09.2014 passed by the Air

Force Officer on the application for maintenance. The application

moved by the wife, however, has not been brought on record.

27

54. Further act of the wife in going to the place of the posting

of the respondent in January 2016, after filing of the divorce petition

has been viewed against her. The family court had recorded without

any basis that the said act of the wife was aimed at some ulterior

motive as she had already filed criminal complaint against her

husband and family members. The family court had also concluded

that since the wife had admitted that she was living separately from

her husband from 21.11.2011, the period of two years of desertion

stood proved.

55. The above act of the wife rather shows that she was

making efforts to meet her husband even after filing of the divorce

suit. The respondent, to the contrary, wrote a letter to the

Commanding Officer on 28.01.2016 stating therein that he came to

know that his wife Smt. Sneha had arrived at the Air Force Station

Kalaikunda on 25.01.2016 without any intimation to him and he had

apprehension that his wife came to stay at the Air Force Station,

Kalaikunda with the intention to file further complaints of criminal

cases which she had filed earlier. The respondent further stated

therein that any act of the wife to come and stay with him would also

interrupt the separation period and weaken his case for divorce. He

had no faith or trust on his wife after separation of more than four

years and did not want to have any kind of meeting or interaction and

definitely could not agree to stay together with her. Prayer was made

in the said application that the wife (Mrs. Sneha Pandit) be requested

to leave Air Force Station, Kalaikunda as soon as possible or else the

respondent would not be responsible for any misdeeds of his wife

which she intended while staying inside the Air Force Station,

Kalaikunda.

56. The respondent had also filed a complaint before the

Superintendent of Police, Paschim Medinipur, West Bengal, on

28

30.01.2016 leveling allegations of harassment and act of forceful

breaking into his house on the part of the appellant. It was stated

therein that in the morning on 29.01.2016 at about 06.00 AM,

appellant Mrs. Sneha Pandit had tried to break into the house of the

respondent forcibly, causing mental harassment to him and creating

pubic nuisance at the Air Force Station, Kalaikunda. It was also

stated therein that the respondent wanted to end his relationship and

was waiting for the decision of the Court where the divorce petition

was pending. He further requested to lodge the criminal complaint

against appellant Mrs. Sneha Pandit because of her intentions being

malign.

57. The action of the respondent in sending letter to the

Commanding Officer on 25.11.2011, intimating the incident occurred

on 23.11.2011, act of his father Ram Gopal Sharma in lodging the

criminal complaint on 29.11.2011 before the Assistant Police

Commissioner, Ambala Cantt on apprehension, the application

moved by the respondent on 30.01.2013 (within two years of the

incident) for allotment of a single officer accommodation i.e. living-

in-accommodation clearly shows that the respondent sine the

beginning of the incident dated 23.11.2011 had no intention to live

with his wife. The appellant had admitted in her cross-examination

that she had given the entire details of the incident orally to the

Commanding Officer who was present on the spot. However, after

she had left, the respondent presented his side of story by writing a

letter after two days. Not only this, the father of the respondent who

admittedly was in Meerut on 23.11.2011, came to Ambala to lodge a

criminal complaint at the police station Ambala Cant on 29.11.2011

leveling allegations against the appellant raising an apprehension that

she would make a false complaint to implicate all of them. The fact of

the matter is that no complaint was lodged by the wife till the divorce

29

suit was filed for about two years after said incident is on record.

58. It, thus, seems to us that the trivial dispute between the

couple took an ugly turn on 23.11.2011 when the wife left her

matrimonial home alongwith her brothers. The respondent instead of

trying to resolve the issue taking benefit of the situation made

criminal complaint against his wife. It is the admission of the

respondent that he did not make any effort to bring back his wife.

There is absolutely no disclosure of any such instance prior to

23.11.2011 which made it impossible for the couple to live together.

59. Further action of the respondent in making a reckless

complaint of the act of harassment and forcibly breaking into his

house on 13.01.2016 on the part of the appellant, when she visited the

Air Force Station Kalaikunda in January 2016 with an aim to talk to

him, on an apprehension that the appellant would lodge another false

complaint or do something adverse to malign his image, reflects the

mindset of the respondent that he was never inclined to patch up with

his wife like a wise persons as he is trying to project himself.

60. In any case, taking into consideration of the acts, conduct

and expression of intention by the parties from their acts and

conducts, both anterior and subsequent to the actual act of separation,

no inference can be drawn for holding that the appellant wife had left

her matrimonial home on 23.11.2011 with the intention to bring the

cohabitation permanently to an end. Mere act of withdrawal of the

wife from her matrimonial home at the Air Force station, Ambala and

the factum of separation of the wife for a period of two years from

her husband when she was making efforts to pacify her husband with

the help of the family in order to bring matrimonial harmony cannot

lead to the conclusion that the wife had no intention to lead a normal

married life with the husband or her act of leaving her matrimonial

home was in absence of any conduct of the husband (respondent)

30

giving the wife (appellant) a reasonable cause to form the necessary

intention aforesaid.

61. From the analysis of the evidence on record, the allegations

of 'desertion' as enshrined under Section 13 (1) (ib) to seek divorce

have not been established. The finding on the issue No.2 as recorded

by the family court are liable to set aside being perverse, contrary to

the evidence on record.

Issue of cruelty:-

62. On the issue no.1 of 'cruelty' alleged to have been caused

by the wife, the finding is that the wife had caused mental cruelty to

the respondent by her conduct, action and inaction and with the

lodging of the criminal cases after filing of the divorce suit. The

question would be whether a decree of divorce on the ground of

mental cruelty can be granted, in the facts and circumstances of the

case.

Law of cruelty:-

63. Before proceeding to deal with the factual aspects on the

issue of mental cruelty, it would be apposite to note the concept of

'mental cruelty' as discussed by the Apex Court in a series of

decisions ranging from the year 2006. In Vinit Saxena vs. Pankaj

Pandit

13

while dealing with the issue of mental cruelty the Apex

Court held as follows:-

“It   is   settled   by   catena   of   decisions   that

mental   cruelty   can   cause   even   more   serious

injury than the physical harm and create in

the   mind   of   the   injured   appellant   such

apprehension   as   is   contemplated   in   the

Section. It is to be determined on whole facts

13. 2006 (3) SCC 778

31

of   the   case   and   the   matrimonial   relations

between   the   spouses.   To   amount   to   cruelty,

there   must   be   such   wilful   treatment   of   the

party which caused suffering in body or mind

either   as   an   actual   fact   or   by   way   of

apprehension in such a manner as to render the

continued living together of spouses harmful

or   injurious   having   regard   to   the

circumstances of the case.

Each case depends on its own facts and must be

judged on these facts. The concept of cruelty

has varied from time to time, from place to

place and from individual to individual in its

application according to social status of the

persons involved and their economic conditions

and  other  matters.  The question  whether  the

act complained of was a cruel act is to be

determined   from   the   whole   facts   and   the

matrimonial relations between the parties. In

this connection, the culture, temperament and

status in life and many other things are the

factors which have to be considered”.  

64. In Samar Ghosh (supra), the Apex Court had given

certain illustrations wherefrom inference of mental cruelty can be

drawn. The Court has observed that illustrative example given therein

were not exhaustive. It would be apposite to reproduce some of the

illustrations:-

“(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.

32

(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.

Xxxxxxxxxxxxx

(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.

xxxxxxxxxx

(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. 

xxxxxxxxxx

(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   ill­conduct   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. 

xxxxxxxxxxxxx

(xiv) Where there has been a long period of

continuous   separation,   it   may   fairly   be

concluded that the matrimonial bond is beyond

repair. The marriage becomes a fiction though

supported by a legal tie. By refusing to sever

that   tie,   the   law   in   such   cases,   does   not

serve   the   sanctity   of   marriage;   on   the

contrary,   it   shows   scant   regard   for   the

feelings and emotions of the parties. In such

like   situations,   it   may   lead   to   mental

cruelty.” 

33

65. Speaking about the concept of mental cruelty, the Apex

Court in Samar Ghosh (supra) has also observed thus:-

“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. 

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.” 

66. In Vishwanath Agrawal, s/o Sitaram Agrawal Vs.

Sarla Vishwanath Agrawal

14

while dealing with the mental

14.2012 SCC (7) 288

34

cruelty, it was opined thus:-

“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.”

67. In K. Srinivas Rao (supra) while dealing with the

instance of mental cruelty, the Court added certain other illustrations

to the illustrations given in the case of Samar Ghosh (supra). The

relevant extract of observations therein are relevant to be noted

herein:-

“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.”

68. In Malathi Ravi, M.D (supra) taking note of the

various decisions of the Apex court, while discussing the concept of

'mental cruelty' it was observed that mental cruelty and its effect

cannot be stated with arithmetical exactitude. It varies from

individual to individual, from society to society and also depends on

the status of the persons. What would be a mental cruelty in the life

of two individuals belonging to particular strata of the society may

35

not amount to mental cruelty in respect of another couple belonging

to a different stratum of society. The agonized feeling or for that

matter a sense of disappointment can take place by certain acts

causing a grievous dent at the mental level. The inference has to be

drawn from the attending circumstances.

69. It was observed in A. Jayachandra (supra) that to

constitute cruelty, the conduct complained of should be "grave and

weighty" so as to come to the conclusion that the petitioner spouse

cannot be reasonably expected to live with the other spouse. It must

be something more serious than "ordinary wear and tear of married

life". The conduct, taking into consideration the circumstances and

background has to be examined to reach at the conclusion whether

the conduct complained of amounts to cruelty in the matrimonial law.

Conduct has to be considered, as noted above, in the background of

several factors such as social status of parties, their education,

physical and mental conditions, customs and traditions. It must be of

the type as to satisfy the conscience of the Court that the relationship

between the parties had deteriorated to such an extent due to the

conduct of the other spouse that it would be impossible for them to

live together without mental agony, torture or distress, to entitle the

complaining spouse to secure divorce. Mental cruelty may consist of

verbal abuses and insults by using filthy and abusive language

leading to constant disturbance of mental peace of the other party.

70. It was observed therein that the Court dealing with the

petition for divorce on the ground of cruelty has to bear in mind that

the problems before it are those of human beings and the

psychological changes in a spouse's conduct have to be borne in mind

before disposing of the petition for divorce. However insignificant or

trifling, such conduct may cause pain in the mind of another. But

before the conduct can be called cruelty, it must touch a certain pitch

36

of severity. It is for the Court to weigh the gravity. It has to be seen

whether the conduct was such that no reasonable person would

tolerate it. It has to be considered whether the complainant should be

called upon to endure as a part of normal human life. Every

matrimonial conduct, which may cause annoyance to the other, may

not amount to cruelty. Mere trivial irritations, quarrels between

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

amount to cruelty. Cruelty in matrimonial life may be of unfounded

variety, which can be subtle or brutal. It may be words, gestures or by

mere silence, violent or non-violent.

(i) Allegations of cruelty in the divorce petition:-

71. In the instant case, in the divorce petition, the respondent

stated that he had suffered mental agony, torture and distress on

account of the demand of the appellant to allow her to take up a job in

the NCR i.e. places like Delhi, Noida and Gurgaon, after the wife had

completed her B.Tech course. It was stated by the respondent that the

appellant and her family members were initially conveyed clearly at

the time of marriage itself, that the appellant (wife) would not be

permitted to take up any employment in the interest of the family and

looking to the status of the respondent being employed in the Air

Force. However, when the appellant insisted and the respondent

denied, the wife started quarreling with him and in a planned manner

with a view to get the respondent dismissed from service of the Air

Force, she made complaints to his higher officials, as a result of

which, the respondent had suffered indignation and his image had

been sullied before his colleagues and superiors and on account of her

own conduct, the appellant could not conceive (bear a child) which

also caused severe mental pain to the respondent as also his family

members.

37

72. Considering these allegations in the divorce petition, when

the respondent was put to cross about the allegations of complaints

made by the wife, he stated that an oral complaint was made by his

wife at the Air Force Utarlai that the respondent had physically

assaulted here and fought with her. He stated that the parents of the

appellant were informed of that conduct and he intimated to his

parents as well. When further confronted, the respondent admitted

that no written complaint was made by his wife and on the oral

complaint made by her, his written explanation was not called by his

superior officials. He also admitted that he did not specify in his

petition or the affidavit filed in the examination-in-chief about the

oral complaint made by the wife at the Air Force Station Uttarlai.

73. From this part of the cross-examination of the respondent,

atleast it is evident that he could not bring on record any specific

instance of complaints made by his wife namely the appellant herein

in support of his pleadings in the divorce petition. The plea of the

respondent that the act of his wife in making false complaints in a

planned manner to his Senior Officers had resulted in mental agony

to him, thus, could not be proved by any evidence much less cogent

evidence.

74. As regards the allegation of demand raised by the wife to

take up employment outside the Air Force Station after completion of

the B.Tech course, in his cross-examination, the respondent had

admitted that his wife also took the job of teaching while he was

posted at the Air Force Station Uttarlai for sometime, while she was

residing with him. He then admitted that the appellant was free to

take up any employment while residing with him but stated that she

wanted to live separately outside the Air Force Station to take up a

job after completion of the B.Tech course. However, no specific time,

year or month could be narrated by the respondent, in his cross-

38

examination, as to when the appellant had raised such a demand but

averred that she (wife) started fighting with him for that reason soon

after marriage.

75. The appellant wife, on the other hand, in her cross, stated

that at the time of marriage, her husband/respondent herein was

posted as Flight Lieutenant in the Air Force and was posted in

Uttarlai, Rajasthan. Soon after marriage, she went to Uttarlai to live

with her husband and did a job for three months with the consent of

her husband but when he was transferred to Ambala, she left the job

and came with her husband. From the statement of the parties, it may

be inferred that the appellant wanted to be economically independent

or engage herself. She even took a job of teaching for a short period

of three months while living with the respondent at the Air Force

Uttarlai, Rajasthan, but it cannot be assumed from any of the

circumstances brought before us that she was insisting to take up

employment elsewhere after completion of the B.Tech course. Not a

single instance of the wife having applied for such a job during the

period when she was living with the respondent, could be narrated by

the respondent in his deposition. The allegation of the respondent that

insistence of the wife to take up employment elsewhere outside the

Air Force station just to live separately from the respondent had

caused rift between them soon after marriage and the said act had

resulted in mental agony to the respondent, thus, is not substantiated

from the evidence on record.

76. Even otherwise, such trivial dispute resulting in quarrel

between spouses, even if existed, it is a rift which happened in day-

to-day married life and cannot amount to cruelty. Even if it is

accepted for a moment that the appellant had aspirations to be an

independent person even after marriage and was insisting to take up

employment after completion of B.tech course, the situation could

39

have been dealt by the respondent more wisely. Instead of controlling

his wife, quarreling on the issue, the respondent could have cajoled

his wife to rationalize his point of view so as to convince her not to

leave him alone just to earn some money.

77. Be that as it may, no such instance is before us to draw any

inference that any such effort was made by the respondent husband

which went in vain and the appellant wife did not listen to his

wisdom rather the statement in the divorce petition in this regard

reflects male-chauvinistic attitude of the respondent husband when he

goes on to say that his wife and her family were categorically told in

the beginning of the alliance at the time of marriage itself, that the

wife would not be allowed to take up any employment, meaning

thereby that she could not think of being an economically

independent person.

78. Leaving this issue as it is, without much deliberation on the

approach of the respondent husband about the dispute, we proceed to

examine other allegations of cruelty made against the appellant.

79. Another contention of the respondent in the divorce petition

was that the wife could not conceive (could not bear a child) on

account of her indifferent attitude and malicious behaviour, which

also added to mental trauma to the respondent as well as his family.

In this regard, suffice it to note that apart from the bald pleading and

reiteration of the said allegation in the affidavit filed in the

examination-in-chief in a casual manner, no evidence whatsoever has

been brought on record to even demonstrate that the respondent had

ever consulted any doctor to know the real problem. Moreover, the

couple stayed together barely for two years after marriage and if

during such a short period, wife did not conceive, it was nothing

unusual and the said situation cannot be attributed to the conduct or

40

behaviour of the wife as alleged by the respondent.

80. Now coming to the incident dated 23.11.2011, there are

contradictory versions of both the parties and as discussed in the

foregoing paragraphs, the respondent could not prove the act of

desertion by the wife/appellant herein. The statement of mental

cruelty caused by the wife on account of her act of desertion,

therefore, cannot be substantiated. To the contrary, the conduct of the

respondent after 23.11.2011 in giving intimation in writing to the

Commanding Officer on 25.11.2011 about the act of his wife of

leaving his home and further the action of his father in going to

Ambala and lodging a criminal complaint at the police station

Ambala Cantt on 29.11.2011 based on his apprehension, further

shows that the respondent himself did not intend to remove the

differences between him and his wife. The averments of the

respondent in the divorce petition as also in the affidavit filed in the

examination-in-chief that the respondent and his parents had tried to

persuade the appellant to forget all differences and live with the

respondent are proved to be false. The conduct of the respondent and

his father in lodging a criminal complaint at the police station and the

admission of the respondent that he did not make any effort for

reconciliation and did not even meet or talk to his wife after she had

left his home, had resulted in widening of the rift between the parties

and has increased the bitterness between them.

81. The next contention of the respondent husband is that on

account of the attitude and ill treatment of his wife, he was so much

disturbed mentally that his promotional prospects were seriously

hampered. The contention is that he could not get promotion on

account of the false complaints lodged by his wife with his Senior

officials and further he could not complete the promotional course in

the year 2011 because his wife had left him without any reason. In

41

this regard, we may note that the respondent in the course of his cross

examination, had admitted that he was not given promotion prior to

2014 as he was not qualified and the 'Qualified Instructor course' was

completed by him in the year 2014. He admitted that his name was

not in the list of selectees for promotional course as he did not fulfill

the eligibility criteria. The respondent then reiterated that he had

mentioned in the divorce petition and his affidavit that he could not

undertake the promotional course on account of the mental tension

because of the conduct of his wife.

82. As noted above, the respondent could not prove that his

wife had made any complaint before his superior officers prior to the

filing of the divorce petition. In view of his admission that he was not

qualified for promotional course prior to the year 2014, the assertion

in the divorce petition that the promotional prospects of the

respondent were hampered due to the conduct and behaviour of his

wife are proved to be false. The said ground appears to have been

taken in the divorce petition on legal advise and later reiterated in the

affidavit filed by the respondent in his examination-in-chief, in order

to prove his case which he failed to establish in the cross

examination. The divorce petition, thus, proved to have been filed on

incorrect facts and false pleas. The family court has erred in taking

into consideration of the averments made in the divorce petition as

gospel truth, ignoring the evidence on record.

(ii) Additional grounds of cruelty:-

83. Now coming to the additional ground taken by the family

court for granting the decree of divorce, the criminal cases filed by

the wife after 23.11.2011, when she allegedly had left her

matrimonial home on her own. Relevant is to note that the petition

under Section 9 of the Act' 1955 was filed by the wife in the year

42

2013. It was categorically stated by the appellant wife that the

respondent husband was not appearing in Section 9, restitution matter

and after two and a half months of filing of the petition under Section

9, the appellant wife filed application seeking interim maintenance

under Section 125 Cr.P.C. On confrontation, the appellant stated that

she was constrained to file the application under Section 125 Cr.P.C.

as the respondent was not appearing in the petition under Section 9 of

the Act' 1955. The appellant was confronted in the course of cross

examination about her act of filing the petition under Section 9 of the

Act' 1955 and Section 125 Cr.P.C., but the categorical statement

made by her that the respondent husband was not appearing in

Section 9 matter, which was filed prior to filing of the divorce

petition, could not be disputed. It has come on record that the

application under Section 125 Cr.P.C. was filed in October 2013, and

it is admitted by the respondent, in cross, that from the date of alleged

desertion, i.e. from 23.11.2011 till October 2013, he did not provide

any maintenance to his wife. It was also admitted by the respondent,

in cross, that the copy of the application for maintenance given by the

wife in the department was provided to him. It is pertinent to note that

till 27.11.2013, when the respondent filed the divorce petition, no

criminal case was lodged by the wife except the application for

maintenance under Section 125 Cr.P.C. and on this fact when the

respondent was put to cross, he admitted the same but reiterated that

false complaints were made by the wife in his department, which he

could not prove.

(iii) Conduct of the husband:-

84. On the other side, looking to the conduct of the respondent,

it may be noted that his father made a criminal complaint to the

police on 29.11.2011 and when the appellant was confronted about

the said complaint, he stated that on 23.11.2011, when his wife had

43

left his home, his father was called in the evening and the entire

incident was narrated to him. His father came to Ambala on the very

next date, i.e. 24.11.2011.The respondent, however, gave a vague

answer when confronted as to whether his father stayed from

24.11.2011 till 29.11.2011, the date of the complaint to the police, but

it was admitted by him that on the date of the complaint, i.e.

29.11.2011, his father was in Ambala and he made the complaint to

the Police Commissioner. The respondent then stated, in cross, that

the complaint was not transcribed by his father in his presence as he

was on duty and further stated that he got the copy of the complaint

lodged by his father before the Police Commissioner, Ambala on

29.11.2011 and it was also read over to it. He then stated that he did

not find any mistake in the complaint made by his father. The

suggestion that the complaint was lodged by his father in defence was

though denied but from the averments made in the said complaint

brought on record as paper No.45-Ga1/4 and 45-Ga 1/5, it is evident

that the father of the respondent pleaded the case of his son that his

daughter-in-law, the wife of his son, had left her marital home

without any reason and against the wishes of his son. The father of

the respondent in his complaint further raised an apprehension that

his daughter-in-law and her family members may lodge false cases

against him and his son, which otherwise proved to be false. The

respondent also admitted that he wrote the letter to the Commanding

Officer on 25.11.2011 narrating the incident occurred on 23.11.2011,

when his wife had left Ambala, and stated that he did so in order to

put everything on record for future.

85. From the conspectus of the above facts, at-least, it is

evident that the father and son were having something in mind that

they created evidence for their protection for future soon after the

appellant allegedly left her marital home, though no criminal

44

complaint was filed by the wife till the year 2014, much after filing of

the divorce petition by the respondent.

(iv) Conduct of the wife:-

86. Coming to the criminal case lodged by the wife under the

Dowry Prohibition Act and Section 498-A IPC, the said case was

filed by the appellant wife on 06.05.2014 and it was an admission of

the respondent, in cross, that prior to the filing of the said criminal

case, only a complaint was filed by the wife in the Mahila Thana in

December 2013 but from 23.11.2011 when the wife had allegedly left

her matrimonial home till December 2013, no criminal case was

lodged by the wife.

87. Thus, analyzing the conduct of the wife from the

beginning, we may note that the appellant wife has proved that she

did not make any complaint to the senior officers of the Air Force

against her husband nor did she filed any complaint in the police

station rather the criminal complaint made by the respondent and his

father were proved to be false. After the wife came back from the

house of her husband in the year 2011, it was her categorical stand

that she started her studies while living in Noida at the house of her

sister and completed M. Tech course in the year 2014. After 2014,

she was doing coaching for higher studies and the entire expenses of

her education and daily needs were borne by her father. It was

categorical statement of the appellant, in cross, she belonged to a

middle class family. The petition under Section 9 of the Act' 1955

was filed by her at Noida while she was residing there. Section 125

Cr.P.C. application was filed after about two and a half months of

filing of the petition under Section 9 of the Act' 1955 as the

respondent was not coming forward in the said petition.

88. When paper No.45Ga/8 was shown to the appellant, in

45

cross, she admitted that she filed the application for maintenance in

the department wherein the said order dated 15.09.2014 was passed.

She then stated that the said order was passed after hearing both the

parties and she did not challenge the said order. When the averments

in the order dated 15.09.2014 were put to her wherein it was recorded

that in her application dated 20.12.2013, the appellant had stated that

the marital discord between them had reached beyond reconciliation,

she categorically replied that no such statement was made by her in

the application dated 20.12.2013 rather it was own assessment of the

officer who had mentioned the said fact in the order on account of the

stand taken by the respondent. The fact of the matter is that though

the appellant was confronted about her statement in the application

dated 20.12.2013 seeking maintenance from the department but the

said application was not brought on record by the respondent rather

he had heavily relied upon the statement in the order dated 15.9.2014

(Paper No.45 Ga/8) to put the said statement in the mouth of the

appellant.

89. Be that as it may, it is evident that apart from moving the

application for maintenance and seeking restitution of conjugal rights,

the appellant wife did not initiate any criminal proceeding nor

insituted any adverse legal action against her husband so as to put her

relations in peril, till the divorce suit was filed by the respondent on

the allegations which have been proved to be false and concocted.

(v) Criminal cases lodged by the wife:-

90. About lodging of the criminal case under Section 482

Cr.P.C., when confronted, the appellant stated that she had filed the

criminal case in May 2014 narrating the incident which occurred with

her. On submission of the final report, protest petition was filed by

her wherein re-investigation was ordered. She again filed a protest

46

petition on submission of the final report which was pending in the

court of the Chief Judicial Magistrate on the date of her cross-

examination in this case. On the suggestion that the appellant filed the

criminal case and protest petitions twice in order to harass the

respondent and his family members and get them punished, she

responded that she did so in order to make them realize they had

wronged her. She, however, maintained the stand that the

Investigating Officer did not make a proper investigation and did not

go to Ambala to make a proper enquiry and further stated that nothing

wrong had been mentioned by her in the first information report

lodged against the respondent and his family members.

91. A further perusal of the contents of the first information

report indicates that the appellant had narrated her plight and stated

that the incident of physical assault upon her was intimated to the

Senior officials when she was medically treated at the Air Force

Station. Even the respondent had tendered an apology before the

Commanding Officer at the Air Force, Ambala for the incident

occurred on 25.10.2011. She further narrated an incident occurred

outside the Mahila Thana on 06.04.2014 when she and her father

were abused by her husband and father-in-law. She further stated

therein that on 05.07.2013, her father had left to her in-law's house at

Prabhat Nagar, Meerut where she stayed there for a period of three

days but on 08.7.2013 but her-in-laws had thrown her out after

abusing her. It may be noted that during the course of the cross-

examination of the appellant, she was not confronted on the

allegations of the incident of physical assault narrated by her in the

first information report, though the cross-examination of the appellant

wife was made in the year 2017. She was also not confronted about

her narration of the incident occurred on 06.04.2014 outside the

Mahila Thana. About the statement made by her having been stayed

47

in the house of her in-laws from 05.07.2013 till 08.07.2013, the

respondent husband had showed his ignorance. The parents of the

respondent with whom, the appellant had allegedly resided from

05.07.2013 till 08.07.2013 did not come forward to confront her.

92. In any case, legal remedy availed by the appellant in filing

a criminal case on the allegations made in the first information report

as noted above, cannot be said to be a ground to conclude that the act

of the wife in lodging the criminal case under the Dowry Act and

498-A had caused mental cruelty to her husband, the respondent

herein, for the only reason that final reports were submitted by the

Investigating Officer and the appellant wife had filed protest petitions

twice challenging the investigation made by the police.

(vi) Subsequent events:-

93. As regards the domestic violence case, it was filed on

05.04.2016 when all doors of reconciliation knocked by the appellant

were closed. It was categorical statement of the appellant that she

went to the Air Force Station Kalaikunda, West Bengal on

25.01.2016 in order to save her marriage and the suggestion that all

her moves after leaving her husband's home were part of a pre-

conceived plan was denied. When confronted, the appellant stated

that she went to the above noted place of posting of the respondent

but came back when the respondent told his senior officers that he

would not meet her. She admitted that she made efforts to patch up

but came back on account of the refusal of the respondent to talk to

her. She gave certain papers to the concerned officers as a proof of

being the wife of the respondent. The respondent husband, on the

other hand, admitted that on 25.01.2016, his wife did not come to

meet him rather she came to the Air Force Station, Kalaikunda, West

Bengal, where he was posted. His wife stayed for five days at the Air

48

Force Station and he did not meet her in those five days. The

respondent had shown ignorance about the fact that his wife had

expressed her wishes to meet him and stated that the department

informed him that his wife came there and was staying in the Guest

House. He then gave an explanation that he did not meet his wife

because of the pendency of the divorce suit though there were other

reasons to meet her.

94. Having noted the admission of the respondent that he did

not meet his wife nor his wife came to him when she stayed for five

days at the Air Force Station Kalaikunda West Bengal, we are

required to note the contents of the complaint filed by the respondent

on 30.01.2016, on the 5

th

day when his wife had already left the Air

Force Station. As per the contents of the said report submitted to the

Superintendent of Police, Pachchim Medinipur, West Bengal, the

appellant broke into the house of the respondent in the morning on

29.01.2016 in order to forcibly enter inside the house and thereby

caused mental harassment to him and created public nuisance in the

Air Force Station Kalaikunda. We may note that there is no narration

of this incident, during cross, by the respondent when he was

confronted about his complaint on the visit of his wife at the Air

Force Station, Kalaikunda, West Bengal. What was the date of the

complaint given to the police, was not brought in the Court. From the

analysis of the conduct of the respondent and his action in making

criminal complaint at the police station on 30.01.2016, after his wife

had already left the Air Force Station, Kalaikunda, West Bengal, it is

evident that it was a calculated move of the respondent to create

evidence against his wife. It could not be proved by the respondent

that the appellant wife had submitted any complaint against the

respondent husband when she visited the Air Force Station,

Kalaikunda, West Bengal during the pendency of the divorce suit. It

49

is proved that she only met some senior officers of the department.

Findings on the issue of cruelty:-

95. Apart from the facts noted above from the record, there is

nothing against the appellant. The family court has erred in returning

a finding that the appellant made complaints to the Senior officers of

the Air Force aimed to get the respondent dismissed from service

while holding that the appellant had thereby caused mental cruelty to

her husband by her conduct and behaviour. The reasoning given by

the family court that the appellant wife was adamant to take up a job

in Noida, outside the Air Force Station, was bereft of evidence.

Lodging of the criminal complaint by the wife cannot be viewed

against her so as to reach at the conclusion that by lodging the

criminal complaint, the wife had traumatized the respondent and his

entire family.

96. As discussed above, the criminal case lodged by the wife

cannot be a reason to grant divorce on the ground of cruelty and the

family court had acted illegally in holding that even filing of the

application for maintenance under Section 125 Cr.P.C. by the wife

would come within the meaning of cruelty. It seems that the family

court was swayed away by the fact that the respondent husband was a

Fighter Pilot posted as Squadron Leader in the Air Force and any

kind of mental disturbance caused to him would come in the way of

the dedicated services of the Nation, having lost sight of the fact that

the respondent husband cannot take benefit of his own wrong by his

mere position in service. Once he had wronged his wife by not

treating her well and not trying to patch up the marital discord by

acting wisely in his complete matrimonial life, no indulgence can be

given to the respondent for the sole fact of being posted as a fighter

pilot in the Indian Air Force. The conclusion drawn by the family

50

court that all the abovenoted acts of wife had resulted in an act of

'cruelty' caused upon her husband is, thus, contrary to the evidence on

record. The findings returned by the family court on issue No.1 in

favour of the petitioner/respondent herein are, thus, liable to set aside.

Relief:-

97. Now the question remains as to the relief to which the

appellant wife is entitled to.

98. From the statement of the husband, their marriage was

arranged and was solemnized with the approval of both the families.

Soon after the marriage, they stayed together for about 3-4 months at

the place of posting of the husband at the Air Force Station, Uttarlai,

Badmer, Rajasthan. As per the husband, they could not stay together

peacefully even during this short period of 3-4 months after marriage

and his statement is that the wife was adamant to go out to take up

employment and that was the reason for their differences, which is

not acceptable as it is admitted by the husband that the wife had

completed B.Tech course only in the year 2010 whereas their

marriage was solemnized in November 2009. During their short stay

at Badmer, Rajasthan, the wife also went to Meerut to undertake

examination for the B.Tech course. During the posting of the husband

at the Air Force Station, Uttarlai, Badmer, Rajasthan soon after

marriage, certain dispute had occurred between them and as per the

statement of the wife in the first information report, she was treated at

the Air Force Station hospital on 31.03.2010. Again an incident had

occurred in February 2011 wherein wife had suffered certain injuries

and was treated at the Air Force Station, at the place of the posting of

the husband. The respondent was confronted, in cross, about those

incidents and he showed ignorance about the treatment of his wife on

01.04.2010 at the Air Force Station, Uttarlai. The respondent also

51

showed ignorance about the incident occurred in February 2011 as

narrated in the first information report. He, however, had

categorically denied the suggestion that he had assaulted his wife

after consuming liquor.

99. The differences between the spouses had ultimately

resulted in the incident occurred on 23.11.2011, when the appellant

had left her marital home alongwith her brothers in the presence of

the respondent husband. Both the spouses are levelling allegations

against each other shifting responsibility for the marital discord, but it

is difficult to accept that the fault lies only with the appellant wife. In

the matter before us, it seems that during the short period of two years

of their marital life, both the spouses were facing issues of

compatibility. The allegations of wife are of physical assault by the

husband, whereas husband seems to be aggrieved by the stubborn

attitude, conduct and behaviour of the wife. They could not live

peacefully and happily even during the short period of two years soon

after marriage. It further seems to us that the respondent husband was

under influence of his parents. The role of his father in going to

Ambala and lodging a report at the P.S. Ambala Cantt, soon after the

wife had left her matrimonial home alngwith her brothers, reflects

dominating and reckless behavour of an elder member in the family

of the husband. The husband states that after two years of separation

he realized that adjustment was not possible and as such talked about

mutual divorce with the wife who refused the request. The husband

admitted that he never met his wife after she had left him on

23.11.2011. He never went to meet his wife or her parents, never

called her. The statement of the husband that his parents made efforts

for reconciliation by talking to the parents of his wife and the wife

herself who was staying at Meerut proved to be incorrect. Looking to

the attitude of the father of the respondent, it is difficult to accept that

52

he acted as a bridge between his son and daughter-in-law and made

any efforts to remove their differences. The respondent husband

showed his ignorance about the visit of his parents to his wife's home

at Meerut though both the families were residing in the same city.

Rather categorical stand of the husband is that his wife went from his

home without his consent and, as such, he did not make any effort to

bring her back. He stated that two years of marriage was not a good

experience for him so he did not bring his wife back and waited for

another two years to file the divorce petition. The husband stated that

the wife had opportunity to come back to him during the initial two

years of separation but firmly stated that he was not ready to keep his

wife in any circumstance. No legal remedy was availed by the

husband to bring back his wife and he categorically stated during his

cross-examination that he was never ready to keep the appellant

Sneha Pandit as his wife. He never met her personally from the date

of the separation till the date of the institution of the divorce suit, as

he needed divorce at any cost.

100. From the statement of the wife, it seems that the father of

the respondent namely the father-in-law went to the mediation center

during reconciliation proceedings. The wife categorically stated that

her father in law was instrumental in institution of the divorce

petition and he was doing pairvi in the matter . The respondent had

filed a petition under Article 227 of the Constitution of India in the

year 2016, itself for expeditious disposal of the divorce petition. The

certified copy of order dated 11.04.2016 passed by this court

directing the family court to decide the divorce petition is on record.

101. The respondent husband in his cross-examination has

categorically stated that he did not make any effort to bring back his

wife after 23.11.2011 as she left on her own volition without his

consent and thereafter she lodged cases against him and also moved

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an application for maintenance. He however, admitted that during the

period of two years, the appellant wife had only moved an application

before the department to seek maintenance and also that no

maintenance was given by him during the period of two years of

separation.

102. It is clear that the dispute between the parties assumed

alarming proportions with the passage of time and it seems that no

one in the family made efforts to make the warring couple see reason.

No effort was made at the early stage of the dispute to help the

couple, before the wife filed the complaint under the Dowry Act,

498-A, in a desperate attempt to save her marriage. She was not

counselled by any independent person or responsible elder of the

family. Mediation proceedings between the parties failed on account

of adamant stand of the respondent husband that he would not keep

his wife at any cost. The husband did not even participate in the

mediation proceeding and sent his father. Whereas the wife was

always ready to go to with her husband and was making efforts in

that direction by going to his parent's home and his place of posting

to meet him even after criminal and civil cases were filed by both the

parties. It seems to us that the criminal case was filed by the wife, in

desperation, in order to bring her husband to the negotiation table.

Her said attempt also failed as final reports were submitted twice in

favour of the husband. The situation, however, turned against her

each time and she had lost every battle with her husband, failed in

every attempt to save her marriage, she never got any level-playing

field, to bring her husband to the negotiation table, who refused to

meet her at any cost.

103. We may not be misunderstood in saying that the fault lies

only with the respondent husband but the sequence of the events of

the present case portrays a clear picture that in the matrimonial

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dispute both the spouses were at fault but no one even elders in the

family had helped them to overcome their differences and the way the

appellant wife had approached the problem, it turned against her.

104. The cause of misunderstanding between the spouses was

trivial but could not be sorted out. The records indicates that the wife

was barely 22 years of age at the time of marriage and husband was

25 years. They have consumed their prime period of progress and

happiness in life in the litigation before the Court. They could live

together only for two years soon after their marriage that too with

great difficulty. The appellant wife and the respondent husband are

staying apart from 23.11.2011, thus, they are living separately for

more than 10 years, in their total period of 12 years of matrimonial

life. This separation has created a distance between the two which

may not be bridged if we refuse to grant divorce.

105. In recent decades, women have moved forward in various

areas of their lives and are competing with men despite many

obstacles. New opportunities in education, politics, and employment

caused many to define new roles for women. In our Indian society,

the women performs not only the role of wife, partner, mother,

manager of the home but also hold key positions as Adminstrator,

Economist, Disciplinarian, Teachers, Doctor, Artist. The ever

evolving human desire drives the development of men and women

alike. Over the past 60 yeas, we have witnessed a conspicuous change

in human desires. Women wish to be less and less involve in

household management and child care and are increasingly expanding

their involvement in other areas of society. At the same time, the

world is pushing towards greater equality and women assume roles

and responsibilities previously only filled by men as the world

becomes more independent, it demands the intervention of women,

asking the women to put their unique qualities into practice. A

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women is capable of holding on to a large number of tasks as well as

carry them out successfully. Women and men are also different in

their attitude but the mutual completion of each other qualities is the

key to build a healthy society in the new era. The integration of

women in the leadership of society and other system on human life is

becoming necessary. The maternal qualities of women are expanding

from the personal home to the global home. In this changing world,

where the gender roles began to shift and change, where the man of

the family is not necessarily the bread winner while the woman is the

house wife, confining men and women in their fixed role inside their

home, often led to this type of dispute.

106. In this changing world, in the case before us, we are feeling

pain to note that a 22 years old girl who was doing B.tech course, was

married off by her parents giving her a dream to live as the wife of a

fighter pilot.

107. The parents of the girl did not allow her to complete even

her graduation course and in the arrange marriage she was told by her

husband that she would not be allowed to take up employment, a pre-

condition for marriage. A 22 years old girl who was not even

graduate might not be ready to take up the responsibilities of a

marriage which became onerous for her with the attitude of her

husband who takes credit even in his wife finishing B.Tech course.

The young girl was not free to even express her aspirations to her

husband, who was made incharge of her life. The independence of a

young girl was, thus, curtailed brutally both by her parents and the

husband. The husband also cannot be faulted as he was brought up in

such an atmosphere where he was tutored that his wife would have to

obey him. The aspirations of the young girl and the attitude of her

husband being in conflict had been the cause of differences and

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disputes on trivial issues. The differences arose because of

compatibility issues between two adults who came from different

social background. At that moment, elders in the family were

required to play a mature role in saving their relationship to bring

harmony between two warring young persons. However, father of the

husband namely (father-in-law) of the wife, behaved completely in an

immature way. Instead of helping his son and daughter-in-law to

overcome the crisis, he had taken the dispute to another level by

lodging police complaint at a time when actually there was no serious

dispute between the couple. While acting defensive as per his own

explanation, the act of father of the husband ignited a trivial dispute

to assume an alarming proportion. As far as the husband is

concerned, he had his own ego when he stated categorically that since

his wife had left (his house) on her own, she could have returned back

“on her own” within two years before filing of the divorce petition

and, thus, sought to explain as to why he never went to meet his wife

or to talk to her to bring her back with him. This attitude of the

husband is a typical example of male chauvinism.

108. Keeping this attitude consistent, in the year 2017, the

husband made a statement in the Court that he was not ready to keep

his wife in any circumstance and needed divorce at any cost.

109. Looking to the entire matrimonial life of two individuals

before us, while dealing with the problems they faced in a short

period of their conjugal life and thereafter, considering the whole

issue from human angle, physiological point of view of both the

spouses, it can be concluded that the matrimonial bond is beyond

repair. It is one of those cases where refusing to severe the marital tie does

not serve the sanctity of marriage as in such case the marriage becomes a

fiction though supported by a legal tie. Such a situation may lead to mental

cruelty of both the individuals and hamper positive progress and

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ultimate happiness in life. We are alive of the legal position that

irretrievable break down of marriage is not a ground for divorce

under the Act' 1955. We are also conscious of the law that the

wrongdoer cannot take benefit of his own wrong. We are also

conscious that being the first appellate court, the decree of divorce

cannot be granted unless grounds as indicated under Section 13 of the

Act' 1955 are established.

110. However, we cannot oblivious of the fact that both the

spouses who are well educated, belong to well respected families had

suffered a lot on account of their own attitude and behaviour. Though

the husband had refused to keep his wife with him and his stand was

consistent throughout but it cannot be said that it is only he who was

at fault. The parties being well educated persons if free from the

matrimonial bond, may look forward to settle in their life in a better

and positive way which may make them happy individuals and their

lives would be constructive to our society.

111. At this juncture, we are constrained to record our

dissatisfaction in the manner in which the Family Court Judge had

dealt with the entire issue. The approach of the Family Court Judge in

dealing with the matter shows complete lack of sensitivity and

reflects chauvinist attitude of the Presiding Officer. The way the

judgement has been written reflects the male chauvinist belief of the

Presiding Officer so much so that he could not see the basic human

problem of compatibility in the attitude and behaviour of two

individuals.

112. The one-sided approach of the family court judge had

closed the doors of reconciliation between the parties. Had he acted in

a neutral manner with progressive attitude, it was possible that the

parties could see reasons when the matrimonial litigation was at the

premature stage, bitterness between them might not have escalated to

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this level. The gender neutral approach of the family Court judge was

much needed to deal with the matrimonial issues impartially. But his

answer to the problems of the couple had again wronged the appellant

wife who was blamed by the family Court for all her deeds and acts,

ignoring the acts of the husband and his family members.

113. The appellant wife must be 35 years of age as of now and

the husband is about 39 years. We are of the considered view that if

at this juncture of their life, they are not given a second chance and

are forced to live together, their lives may become miserable. The

matrimonial dispute which has assumed this proportion on trivial

issues, seems to be beyond repairs on account of bitterness created by

the acts of both the husband and the wife and their family members.

114. The Apex Court in K. Srinivas Rao (supra) has taken

note of its previous decisions to observe that the courts have always

taken irretrievable breakdown of marriage as a very weighty

circumstance amongst others necessitating severance of marital tie. A

marriage which is dead for all purposes cannot be revived by the

Court’s verdict, if the parties are not willing. This is because marriage

involves human sentiments and emotions and if they are dried-up

there is hardly any chance of their springing back to life on account

of artificial reunion created by the Court’s decree. It was noted

therein that the divorce petition was pending for eight years and a

good part of the lives of both the parties had been consumed in

litigation, yet the end was not in sight. In such circumstance, the

Apex Court in V. Bhagat vs D. Bhagat 1994 (1) SCC 337 had

observed that irretrievable break down of marriage is not a ground by

itself, but, while scrutinizing the evidence on record to determine

whether the grounds alleged are made out and in determining the

relief to be granted, the said circumstance can certainly be borne in

mind.

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115. In the course of fighting litigation in different Courts the

parties lost their “young days of happiness and prosperity.” In the

compelling circumstances of the present case, though we do not find

any convincing ground taken in the divorce petition filed by the

husband to grant the decree of divorce to him, but in order to give a

chance to the parties to settle themselves and be relieved of a

marriage which is dead, we are of the view that the marriage between

the parties deserves to be dissolved.

116. But before concluding so, we are required to consider that

the appellant wife who have lost employment opportunities after

completion of the B.Tech course because of the resistance of her

husband, who himself could not give her a peaceful comfortable life,

is entitled to permanent alimony. A well educated girl who got

married to an Air Force Officer at the age of barely 22 years must

have a lot of dreams to lead the comfortable and secured life of the

wife of an Air Force Officer. The wife though had completed B.Tech

course in the year 2010 but could not take up any job due to marital

obligations. During the period of separation of two years, she had

studied M.Tech course and also took coaching for higher education

but could not take any employment for becoming an economically

independent person due to her energies being consumed in the

litigation with her husband. The husband had wronged his wife in

filing the divorce petition on false grounds.

117. Regard being had to the above circumstances and social

status and strata of the parties especially the husband, the aspirations

of the appellant wife to lead the life of the wife of an Air Force

Officer, we found it justified to provide a sum of Rs.1 Crore (One

Crore) as permanent alimony to wife, excluding the amount already

paid to the appellant wife towards interim maintenance. We hope and

trust that the alimony fixed by us may help the appellant wife to

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purchase a decent house for herself and stand on her own legs to

become a useful member of the society.

118. The total amount of alimony shall be deposited by the

respondent husband within a period of six months from the date of

the judgement, in two installments of Rs.50 lacs each, before the

Principal Judge, Family Court at Meerut and the money shall be

released in favour of the wife soon after the deposits on an

application moved by her.

119. We are conscious that we are granting decree of divorce to

the couple in the peculiar facts and circumstances of the case taking a

pragmatic view in order to give them a chance to lead a peaceful and

happy life in future and an opportunity to the wife to be economically

independent with the permanent alimony which she receives from her

husband. We hope and trust that the parties may now put an end to

their dispute and look forward to a positive life in future.

120. We are making it clear that this judgement has been given

in the peculiar facts and circumstances of the case on an analysis of

complete matrimonial life of the parties though we are convinced that

the appellant wife was not solely at fault. This judgement thus, shall

not be treated as a precedent or guidance by the family court to grant

decree of divorce on the ground of irretrievable break down of

marriage. We have done so as both the parties are well educated and

belong to a well-off family and they still have a chance to settle in

their lives in a better way if are separated without any social stigma.

121. With the aforesaid directions, we annul the marriage

between the parties granting them the decree of divorce.

122. The divorce petition No.1614 of 2013 is hereby allowed.

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123 The appeal is disposed of, accordingly.

124. No order as to cost.

125. Before parting with this judgement, we find it imperative

to put on record that the role of family court judges is not only of

adjudicators but they are facilitators in matrimonial disputes where

perception of a judge about gender issues plays a major role in his

decisions. The Family Court judges have to be gender sensitive. To

evolve as a Family Court judge, a person has to be gender neutral,

gender sensitive, open to the social changes to have a mature

thinking. In this evolution process, according to us, gender

sensitization program can play an important role. We, therefore,

recommend that gender sensitization program be especially designed

and held for the Family Court Judges in the State of U.P. The High

Court Family Court Sensitization Committee may consider the issue

to take it further. The Registrar General is directed to place the matter

before the committee.

(Sadhna Rani (Thakur),J.) (Sunita Agarwal, J.)

Order Date :- 29.09.2022

Himanshu