GAUHATI HIGH COURT
Bench: JUSTICE J.N. Sarma
MONIKA HOM ROY
SMARAN ROY On 5 June 2000
Decided On Jun-05-2000
Case Number First Appeal No. 82 of 1995
This appeal has been filed by the wife under Section 28 of the Hindu Marriage Act against the decree of divorce granted by the Trial Court, that is, by the Additional Deputy Commissioner, East Khasi Hills, Shillong in Divorce Misc. Case No. 10(T) of 1993 (Divorce Misc. Case No. 14 of 1991). The present respondent-husband filed an application for divorce under Section 13(1) of the Hindu Marriage Act on the ground of cruelty. The written statement was filed by the wife-defendant and, thereafter, after filing of the written statement another application was filed to amend the plaint/petition and that was allowed. Accordingly, an amended petition was filed. The issues were framed by the Trial Court. The following witnesses were examined on behalf of the parties :
(1) Samaran Hom Roy, P.W. 1, (2) P.W. 2 C.K. Rudra, (3) P.W. 3, Soumen Sarkar, (4) P.W. 4 Madhab Dutta, (5) P.W. 5 K.P. Roy, (6) P.W. 6, Ram Babu Rai. The evidence of the P.Ws. was closed. On 18.3.1994, 2 P.Ws. were examined and the case was adjourned for 7.4.1994, the case was fixed for evidence of the defendant. On 7.4.1994 time was taken on behalf of the defendant. The next date was on 21.4.1994. On 21.4.1994 no list of witnesses was furnished on behalf of the defendant and no witness was present on behalf of the defendant and as such the Trial Court closed the evidence of the defendant and fixed the matter for argument. On 30.4.1994 none was present on behalf of the defendant and the case was adjourned till 9.5.1994. The Counsel for respondent on 9.5.1994 was also absent and as such the argument was heard on behalf of the petitioner/plaintiff and by the impugned judgment dated 16.3.1994 allowed the application for divorce. Hence this appeal.
2. I have heard Mr. H.R.A. Choudhury, learned Advocate for the appellant and Mr. P.C. Roy, learned Counsel for the respondent. Mr. Choudhury makes two, fold submissions :
(1) That cruelty as alleged has not been established by adequate, sufficient and legal evidence.
(2) That no opportunity was given to the defendant to adduce evidence and as such the judgment is to be set aside holding it to be an ex-parte judgment and the matter may be remitted back.
3. I take up the ground No. 2 first for decision. It is well established principle of law that a horse can be taken to the water but it cannot be forced to drink water. Ample opportunity was given to the defendant to adduce evidence, but she did not avail that opportunity. As such I do not find this to be a tenable ground to interfere with the impugned judgment. This contention shall stand rejected.
4. The next question is that whether the finding arrived at by the Trial Court with regard to cruelty is adequate, sufficient and there is legal evidence to enable the Court to pass a decree for divorce.
5. The legal conception of cruelty necessary to amount to a matrimonial offence has not been defined by any statute of the Indian Legislature relating to marriage and divorce nor has the expression been defined in the Matrimonial Cause Act, 1950 in England. The danger of any attempt of giving a comprehensive definition which may cover all the cases have been emphasised in a number of decisions Lord Denning pointed out, “The categories of cruelty are not closed” Sheldons v. Sheldon, (1966) 2 All.ER 257. The law on the subject had been rather from the decided cases and Courts in India have accepted and adopted it in a number of cases to conditions in India on the Judge made laws on the subject in England. The accepted legal meaning in England also in India of the expression which is rather difficult to define is the conduct of such character as to have caused danger, for the life, limb or health, bodily or mental or to give rise to a reasonable apprehension of such danger.
6. It may be noticed that cruelty per se was not a ground for relief by way of divorce prior to the amendment of the Section 13 of the Act. Before the amending Act of the 1976, cruelty was only a ground for the relief of judicial separation, in the Clause (b) of Section 10(1) of the Act. The word used in the section simply states, “Treated the petitioner with cruelty”. The object it would seem was to withhold giving a definition exclusive or inclusive which will amply meet every particular act or conduct and to fail in some circumstances. By the amendment the Legislature must, therefore, understood to have left to the Court to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. Some High Courts have taken the view that by the amendment liberal approach have been made for a decree of divorce on the ground of cruelty, statute limitation included in the old Section 10(1)(b) hence now have been wiped out. This view may not be correct. Though there may be attempt to liberalise yet in order to be entitled to get a decree of divorce on the ground of cruelty. The cruelty must be brought home and established. In Dastane v. Dastane, I (1981) DMC 293 (SC)=AIR 1975 SC 1534, the Supreme Court examined the matrimonial offence/relief on the ground of cruelty as it was available in the old section. The Supreme Court pointed out that the Court must conduct itself to find out whether cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful to the health, limb or life of the petitioner. It was also pointed out by the Supreme Court that it is not necessary, as under the English Law, that the cruelty must be of such a character as to cause danger to life, limb or health or as to cause a reasonable apprehension of such a danger, though of course harm, injury to health, reputation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Therefore, what the Courts must determine is not whether the petitioner has to provide the charge of cruelty having regard to the principles of English Law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent. The circumstance varies definitely from case to case, in Mulla’s commentary on the Hindu Marriage Act at pages 666 and 668, it has been pointed out as follows :
“The Court will not try to search the colour of the facts of one case with that of another nor will it tag on any specific test of general application, though of course, the occupations approved of by the High Court and particularly the Supreme Court continues to be of considerable guidance in these matters. Some broad general principles, which emerge from the decision should be found useful;
(i) Cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence. The question whether the respondent treated the petitioner with cruelty is a single question only to be answered after all the facts have been taken into account. Without quoting the specific opinions in which this principle was stated by at least two of the Lords who decided the case of Jamieson v. Jamieson, in the House of Lords, (i) the principle may now be said to be well established. It may be taken as equally well established that it is a wrong approach to put the various acts or conduct alleged into a series of separate compartments and say each of them that by themselves they cannot press the test of cruelty and, therefore, that the locality cannot press that test.
(ii) It is undesirable, if not possible to create categories of acts or conduct as having or lacking the nature or quality which render them capable or incapable in all circumstances amount to actual cruelty (i) Nor is it necessary to compare acts as being gross and less gross. There may be cases where the acts complained of are in themselves so trivial that the Court would be justified in not attaching any importance to them. On the other hand acts not serious in themselves may be symptomatic of the press in which the marriage had come and of the state of mind of the parties. Since cruelty is to be inferred from the whole of the relations between the husband and wife it would not be a proper approach to take up each alleged incident one by one and hold that it is trivial or that it is not hurtful or cruel and then to say that comparatively do not amounting to anything grave weighty or serious. The relationship of marriage in the present context is not to be taken as just the sum of a number of incidents.
(iii) In general cruelty is in its character a cumulative charge. It is not necessary that the acts complained of must be of a certain character. The conduct may consist of a number of acts each of which is serious in itself, but it may well be even more effective, if it consists of a long continued series of minor acts no one of which could be regarded as serious if taken in isolation. Every such act must be judged in relation to its attendant circumstances and the physical or mental condition or susceptibilities of the innocent spouse and the offender’s knowledge of the actual or probable effect of his conduct on the other. The age, environments, standard of culture and status in life of the parties are also matters which may be decisive in determining on which side of the line a particular act or course of conduct lies. The acts and incidents complained of as also the conduct of the parties must be taken together to form a composite picture from which alone it can be ascertained whether the acts of the spouse on another should, judged in relation to all the surrounding circumstances be found as amount to cruelty.
(iv) The existence of cruelty depends not merely on the magnitude, but at times also on the consequences of the offence, actual or apprehended.
(v) Mental ill-treatment may be coupled with physical ill-treatment in order together to found a charge of cruel treatment. Since mental and physical ill-treatment can, though they are not ejusdem generis, be taken together, it must follow that different forms of ill-treatment may be taken together to found a charge of treatment which amounts to cruelty (m).
(vi) The primary question in these cases is not whether the conduct complained of would be cruel to a reasonable person. The Court has to deal not with an ideal husband or ideal wife but with, “this man and this woman”. Nor is the Court concerned with the reasonable person. The Court will not start with any priori assumptions that the parties are reasonable people (ml).”
It is on the background of this law that we must decide the present case and have to find out whether cruelty has been made out or not.
7. I have perused the letters written by her previous lover to the wife before she left the matrimonial house, both the English translations as well as the original in Bengali. They depict deep love and affection that both of them had for each other. Those letters are exhibited as Exhibit I. A harsh letter was sent by the wife vide Exhibit-4, written to sister of plaintiff and that letter is quoted below :
I am sending a man, you send my clothes, sewing stitch books and the prayer book. Yes, the clothes and shawl given by you, you keep back, I shall send the things given by you, by making a list, locker will be closed. Tell Samaran to be at the Bank during the Puja holidays. I want to return the marriage ring, given to me by Samaran. Tell Samaran to take the diary and the photographs, from door to door and expose them. Tell him to hold these things by his heart (the photographs and the letters) as they are invaluable to him. Hope so you will try to maintain the decency, as you all belong to the Hom Roy Clan. I will come and take the rest of my belongings during the Puja vacation.
That reply also sent by the wife not to the husband but to the sister of her husband, Renu by name. This shows that she does not have any tolerant attitude. It is really difficult to find a perfect couple. It is usual and normal to find wife and husband who came to live together from different background. The demand of marriage life is that we should adjust. If there is no adjustment between the wife and husband a marital life shall collapse. A couple can make it a peaceful life by their own conduct and behaviour if both of them try to adjust themselves. As will be evident from the letters written by the husband, the wife was not ready to make even a small sacrifice as it is established from the evidence. There is further thing, it has been brought home by the evidence of the neighbour, who stated in the evidence that the wife used to misbehave even at the public place with the husband and that also is highlighted by the Trial Court in its judgment. The matter does not end there, the wife tried for and agreed for mutual divorce if she is paid one lakh rupees and accordingly an agreement was executed between the husband and wife by granting a money receipt, the wife accepted sixty thousand rupees and thereafter she did not sign the mutual divorce petition. Accordingly I do not find any ground to interfere with the impugned judgment of the Trial Court. The cruelty has been established in this case. Exhibit-3 is a letter written by husband to wife to come back to marital home. To that cause the reply vide Exhibit-4 quoted above. Exhibit-5 is another letter written by wife to a neighbour of husband wherein also she expressed her inability to live in marital house. The P.W. 1 husband deposed as follows :
“In many occasions when I reached my official quarter at Khliehriat around 8.30 p.m. I found the door was locked from inside and after giving many knocks, she never opened the door and I had been compelled to stay with my neighbours, namely Shri Madhav Dutta and one Souren Sarkar. Ultimately on 17.5.1989 respondent came to my Khliehriat Quarter at about 11.30 a.m. with a person whom I do not know and took her belonging and left the house the same day after abusing me in front of my subordinate staff. In September, 1992, the respondent along with one Advocate approached one Shri C.K. Rudra, Head Assistance, MSEB and my Ex. Engineer for a mutual divorce and the same was settled in front of a Magistrate, First class at Shillong, wherein I paid a divorce maintenance amount for a sum of Rs. 60,000/- (Rupees sixty thousand) as advance and on completion of the mutual divorce case I would pay again a sum of Rs. 20,000/- (Rupees twenty thousand) as asked by the respondent. Ext.-8 is the agreement signed before the Magistrate, First Class, Ext. 8(1) is the signature of the respondent and Ext. 8(2) is my signature. Ext. 8(3) is the signature of Shri C.K. Rudra who was the witness for the respondent. Ext. 8(4) is the signature of Shri Ram Rabi Roy who is also one of the witnesses on my behalf. Ext. 8(5) is the signature of Magistrate, First Class with the signature of the Court. After taking the money of Rs. 60,000/- she gave a money receipt dated 28.9.1992. Ext.-9 is the said money receipt and Ext. 9(1) is the signature of the respondent. The agreement was for the respondent to sign the divorce papers for mutual divorce, but she did not sign and left Shillong without saying anything.”
8. P.W. 3 Shri Madhab Dutta deposed as follows :
“(a) I used to visit the quarter of the petitioner and I find the respondent several times quarrelling with the petitioner and abusing other members of the petitioner’s family. One evening I found the respondent throwing a cup of tea at the petitioner. On several occasions when we returned from Shillong on official work, the respondent shut the petitioner out and I requested her to open but she refused and the petitioner was compelled to stay with me for the night.
(b) It is not possible for any sane man to live and stay with the respondent.”
9. All the evidence read with Exhibits 1 and 2 establish the conduct of cruelty on the part of respondent-wife. Accordingly the appeal shall stand dismissed and the decree of divorce granted by the Trial Court shall hold the field.
10. But before I part with the record I must give some permanent alimony to the wife as it is submitted by Shri H.R.A. Choudhury that the wife is not working and she is living at the mercy of her brother, who is also unemployed. Section 25 of the Hindu Marriage Act provides for permanent alimony and maintenance. Though Section 25 of the Hindu Marriage Act recognises the rights of the wife and the husband to be placed on equal footings in the matter of maintenance when a Court will grant relief, the Court itself primarily supports the wife. A Court is obliged to direct that the husband must pay adequate maintenance to the wife as it is not the function of the Court to allow a lady to lead a life of destitute. The husband herein as on today is an Executive Engineer and a sum of rupees sixty thousand has been paid to the wife, from the date of filing of the application for divorce the husband has not paid any alimony to the wife save and except rupees sixty thousand. In that view of the matter I make it clear that the husband shall pay a further sum of rupees one lakh fifty thousand in lumpsum within a period of six months by equal four instalments to the wife. The decree of the divorce shall be effective after the aforesaid amount is paid by husband to the wife. The amount shall be paid to the wife by crossed Bank Draft in the name of wife to be sent to her at Karimganj. An account shall be opened in the name of the wife and there at bank at Karimganj the money may be deposited by the husband in the account of the wife. The account shall be operated by the wife and the Bank shall not allow her to withdraw the amount at a time. It is needless to say that the money is for the wife and the Bank shall give reasonable money to the wife at the end of reasonable interval.