498A,Desertion still not Cruelty on men

Mumbai High Court

Equivalent citations: 2007 (3) BomCR 841, I (2007) DMC 446
Bench: A Joshi

Nitin Bhaurao Tidke vs Sujata on 29/8/2006


A.H. Joshi, J.

1. Parties were married at Murtizapur on 26th February, 1993.

2. According to the appellant, the respondent started raising quarrels with the appellant and with appellant’s mother after 3 to 5 months of normal stay at matrimonial home.

According to the appellant, the wife refused to attend to the day-to-day activities in the house, such as cooking, serving the food, etc. The appellant claims that due to this behaviour of the respondent, they were allotted a separate room in the house. The respondent, however, used to remain out of house for the whole day without informing her whereabouts, and used to quarrel on inquiry.

3. After birth of a child, the respondent turned more arrogant and abused the
husband-appellant in a filthy language and left the house with her daughter.
When the appellant went to fetch her back, he was insulted. Ultimately, she was
brought back by relatives.

Even on return, her behaviour remained unchanged. According to appellant, she
threatened of criminal action and that the husband and his relatives were put
behind the bars. She also got her second pregnancy aborted. She ultimately left
the matrimonial house by leaving the child on 31st March, 1996, informing that
she had no desire to co-habit and announcing that she was thereby breaking
matrimonial ties.

4. All efforts of conciliation failed. She also lodged a complaint with
Police for offence under Section 498A, read with Section 34, Indian Penal Code,
on 7th December, 1996.

The said complaint has resulted in acquittal.

5. Pre3ent appellant has filed a Hindu Marriage Petition for divorce on the
ground of cruelty on 5th July, 1997 under Section 13(1)(ia).

6. After the trial, the learned Civil Judge (Senior Division), Akola, allowed
the Hindu Marriage Petition No. 106 of 1997.

7. Respondent-wife, who was aggrieved by the judgment of Trial Court,
preferred an appeal which was registered, tried and decided as Regular Civil
Appeal No. 71 of 2000.

8. The learned Third Additional District Judge, who heard and decided the
appeal, allowed the same and set aside the judgment and decree passed by Civil
Judge (Senior Division), Akola, dissolving the marriage, and dismissed the

This order of allowing the appeal filed by the respondent-wife before First
Appellate Court, and dismissal of Hindu Marriage Petition of the appellant is
subject-matter of this petition.

9. The Second Appeal has been admitted by this Court, and following
substantial question of law has been framed:

Whether it is permissible for an Appellate Court exercising appellate
jurisdiction over a decree passed under Section 13 of the Hindu Marriage Act to
set aside that decree merely because the Appellate Court, on re-appreciation of
evidence, takes a different view of the evidence.

10. It is seen from record that the efforts for conciliation were made,
however, parties have reported failure, and, now, the appeal is taken up for
final hearing.

11. Heard learned Advocates for the parties.

12. This Court will have to find out as to how and in what premises the
substantial Question of law framed in this appeal arises between the parties,
and what shall be the result if the question is answered in either way.

13. This Court has to find out from the pleadings what was the exact
substratum, which has led the husband to describe a particular conduct of the
wife to be cruelty, find out what evidence was led and what weighed with the
First Appellate Court due to which the First Appellate Court found on its
independent appreciation of evidence that the averments and evidence did not
constitute cruelty, and the finding of the Trial Court appeared to the First
Appellate Court to be so grossly improper that the First Appellate Court found
it proper to reverse the decree, and thereupon, if demonstrated by the
appellant, to find out whether the Appellate Court has taken recourse to second
opinion of evidence as “just it was available” in terms of the substantial
question of law framed by this Court at the time of admission of appeal.

14. It, therefore, becomes necessary to go to the pleadings.

15. The complaint relating to conduct and behaviour of the wife-respondent in
the Hindu Marriage Petition is seen into various paras which are extracted for
convenience as follows:

3. …Firstly for 3-4 months the behaviour of the respondent was normal,
and thereafter, she has started raising quarrels not only with the petitioner
but also with his mother….

3. …After 3-4 months of the marriage, the respondent has started giving
insulting treatment to the mother of the petitioner so also to the other members
of the family. She had also started refusing to serve the food to the members of
the family and the petitioner. She has also refused to cook the meal for the
family members and behaviour of the respondent was absolutely cruel over the
petitioner and other family members.

quoted from page 98 of the Appeal Paper-Book.

4. …She is leaving the house in the absence of the petitioner without
seeking any permission and returning in the evening time without giving her
whereabouts. As and when the petitioner has tried to give understanding to the
respondent, not to leave the house in such manner, it was her practice to give
very insulting replies to the petitioner. She had developed the habit to raise
quarrel and leave the place of the petitioner in his absence with luggage and
she is used to go to Murtizapur and stay there for weeks together….

4. …One of the sisters of the respondent is residing at Amravati and
controlling all the affairs of the family and she was acting as a director. At
her instance, the respondent started giving abnormal behaviour towards the
petitioner and his family members, so much so that, it became very difficult for
them to lead the peaceful life…

4. …All the while the respondent used to create a scene by raising the
quarrel either with the petitioner or with the mother of petitioner so also with
other family members.

quoted from pages 99 and 100 of the Appeal Paper-Book.

5. …Even the sister of the respondent and her mother-in-law tried to give
understanding to the respondent but, the respondent was giving the replies in a
very insulting manner. Due to the elder sister of the respondent, the respondent
has made the life of the petitioner and other family members miserable. All the
while they have to carry tension relating to the attitude of the respondent.

quoted from page 100 of the Appeal Paper-Book.

6. …After two months of birth of the daughter she has raised the quarrel
with the petitioner and gave him abuses in a very filthy words and in his
absence when he was on duty, she left the house without obtaining the permission
with luggage and daughter….

6. …Thereafter with the mediation of the relatives the respondent came to
the place of the petitioner for cohabitation. However, her rude behaviour was
continued. Her practice to leave the house, to raise the quarrel was continued,
and on making inquiry she used to raise the quarrel and was making the
atmosphere of terror in the house….

quoted from pages 100 and 101 of the Appeal Paper-Book.

9. That, on or about 31.3.1996, the respondent again raised the quarrel
with the petitioner and given threats to whole family and left the house in the
absence of the petitioner by throwing the minor child in the house itself….

quoted from page 101 of the Appeal Paper-Book.

16. Above quoted allegations have been replied by the wife-respondent herein
in her written statement where she has denied the allegations. On the other
hand, she complained that she was mercilessly beaten, and husband even tried to
pour kerosene on her person. She escaped with great effort. She is rendered
destitute without any maintenance. According to her, all allegations are false.
She claimed that she was ill-treated. She was not provided proper food,
clothing, and was often insulted. She always behaved nicely with the in-laws.
According to her, entire story pleaded by husband is cooked up.

17. It is pertinent to note that in the oral evidence in the examination-in-
chief, two circumstances have emphatically been narrated, namely:

(a) when the respondent-wife had gone to Murtizapur, appellant-petitioner
went to fetch her back. At that time, appellant was insulted, and threatened
that she would see that law, which favours the women would be put into motion
and he would be dealt with, further that she got her second pregnancy aborted
against his wishes.

(b) On 26th and 28th November, 1996, his grand-mother was in coma. On those
days, the wife came and squatted in Verandah from 8.00 to 10.00 a.m. On 28th
November, 1996, his grand-mother died. On 29th November, 1996, respondent
squatted in the Verandah for full day. In the evening, some persons from her
parents’ side came and attempted to break the house. Neighbour, namely Madhvani,
tried to intervene when he was told not to interfere, as it was none of his

The behaviour of the wife on 13th day, i.e. on 17th December, 1996 of
coming to the place with police was not proper and that he was insulted.

Further all that the appellant has stated in his evidence is that after 3-4
months of marriage, his wife used to quarrel with him. Even the respondent-wife
disclosed him that she is not happy with marriage. She always mentally tortured
petitioner by threatening that law is in favour of woman and she will send him
to jail.

18. The husband has then examined his father Bhaurao as PW 2, and Prakash
Tulshiram Kale as PW 3. PW 4 Dr. Ashok Fokmare is also examined.

From the evidence of remaining three witnesses, it can be seen that none of
the witnesses have stated exactly which circumstances or facts resulted in
causing agony to the husband.

All the witnesses in their examination state that she (Sujata) used to
quarrel with husband and left home, but no one can clearly state reason of her

19. It is seen that none of these witnesses have stated exactly which
circumstances or facts, i.e. the conduct of respondent-wife has resulted in
causing so gross and serious trouble and mental agony to the husband,
consequently disturbing normalcy of his life, so as to denote the respondent’s
conduct as mental cruelty.

20. It is quite likely, rather may be true, that the wife is extremely
introvert, or a woman of hyper-sensitive nature. She may be short tempered, or
untrained to live in a big family, having background of good stature and
etiquettes with which the family of husband is enriched.

21. It is seen from averments contained in initial four paragraphs of Hindu
Marriage Petition where the husband has tried to narrate the background of his
family which refers to highly educational status and well-placed position of
members of his family and those related to him. It is quite likely that the
cultural discord between the family and upbringing of respondent-wife did not
match with the status and standard, social, cultural, etc. of the husband.
Mismatch of personalities and friction that may occur on account thereof between
the husband and wife is not essentially a cruelty.

22. As far as factum of mental cruelty by wife to husband in the present case
is concerned, the appellant got himself delimited as to these matters within the
bounds of his pleadings in the petition. This Court has in detail referred to
the averments. Crucial averments have been quoted in extenso in this judgment.
The appellant had opportunity to amplify within legal bounds about all that he
could embroider.

What emerges from evidence led by the husband and his witnesses is that he
even did not try to prove as to how whatever is pleaded by him operates to him
as mental cruelty. Nothing has come on record which could be read as a proof of
the fact that he suffered mental agony and trouble to such extent that it could
no more be endured and tolerated to enable continued co-habitation
notwithstanding said acts of mental cruelty.

23. It is well settled that cruelty is not a term which could be fitted into
specified yardsticks. Some acts which are just routine or casual could be a
grave act of cruelty to others. It would depend upon facts of a given case
whether these acts were ‘cruel’ to the subject person, and such person has to
prove as to how he suffered due to said acts which were to him or her acts of
mental cruelty.

24. Evidence received in the present case falls too scant to cloth the acts
complained against wife with the garment of cruelty.

25. This Court finds that in view of the question formulated at the time of
admission, it has become necessary to test as to whether just because it was
available that the Appellate Court has taken a different view of the matter.

26. It will be discourteous to say that the Appellate Court has taken a different view of the matter just because it was available. The Appellate Court has applied mind fully, and given reasons as to why he does not agree. The reasoning recorded by the Appellate Court as to why the conduct in question,does not amount to, or fit into idea or concept of cruelty is plausible, and cannot be faulted. The same, therefore, does not warrant interference.

27. In the result, this Court finds that the Appeal has no merit.

28. The Substantial Question of Law framed at the time of admission is answered against the appellant. Appeal is dismissed with costs.

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