HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 2845/2018
Neha Tyagi wife of Lieutenant Colonel Deepak Tyagi, Daughter of Shri Vinod Kumar Tyagi,
Resident of House No. 4, Kalyan Nagar- II, Sita Bari, Tonk Road, Jaipur (Rajasthan) —-Appellant-Non Petitioner-Wife
Versus
Lieutenant Colonel Deepak Tyagi Son of Shri Virendra Singh Tyagi,
Resident of House No. 157-D, Green Heights, A to Z Colony, Modi Puram, Meerut (U.P.),
at present posted at 66, Engineer Regiment Care of 56 A.P.O. —-Respondent-Petitioner- Husband
For Appellant(s) : Shri Rajendra Prasad, Senior Counsel assisted by Shri A.S. Shekhawat Mst. Neha Tyagi, appellant in person.
For Respondent(s) : Shri Manoj Kumar Bhardwaj Shri Vivek Sharma Lt. Col. Deepak Tyagi, resp. in person.
HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
REPORTABLE
Order reserved on 28/08/2019
Order pronounced on 18/09/2019
BY THE COURT : (PER HON’BLE DHADDHA,J.)
1. Respondent Lt. Col. Deepak Tyagi had presented an application for divorce on 25.11.2014 against his wife Neha Tyagi before the learned District & Sessions Judge, Jalandhar from where, the matter was transferred to the learned Family Court No.1, Jaipur by the direction of the Supreme Court for disposal according to law.
2. This appeal has been preferred by the appellant wife against the order of the learned Family Court No.2, Jaipur passed on 19.5.2018 whereby the learned Family Court allowed the matrimonial Civil Case No.1496/2016 NCV No.482/2016 filed u/s 13 of the Hindu Marriage Act, 1955 (for short “the Act”) dissolving the marriage solemnized between them on 16.11.2005 with effect from the date of order i.e. 19.5.2018.
3. Brief facts giving rise to this appeal are that the marriage of the appellant was solemnized with respondent on 16.11.2005 as per Hindu rites and customs without any demand of cash or dowry. The spouses lived one week at Kolkata where they consumed the married life. The spouses were blessed with male child Parnav Tyagi on 23.2.2008. The behaviour of the appellant was very cruel towards respondent and his family members. The appellant used to insult them. She refused to care them and frequently used to go her native place. The appellant had left the company of respondent in the month of May, 2011 along with her minor son with understanding to join the company of respondent within ten days, but she did not return back. The respondent himself visited Jaipur and requested on several occasions i.e. in September, 2011, December, 2011 and January, 2012 but the appellant did not join him. The appellant had attacked the employment of the respondent by filing frivolous complaints to his superiors.
4. In reply, the appellant denied the allegations levelled by the respondent in the petition and stated that the grounds for cruelty and desertion were baseless and frivolous. At the time of ring ceremony, the respondent and his parents pressurized her father for cash. On their sudden demand, a demand draft of Rs.4,00,000/- was given. The appellant never misbehaved the respondent and his family members. In the moths of July and August, 2007 while she was pregnant living with her husband at Shilong, respondent did not care her and also not consult the doctor. He wanted represent himself as unmarried man. In June 2009, she joined the matrimonial home at Jalandhar with the hope to save her married life but behaviour of the respondent remained the same. He used to torture her. In the year 2011, the appellant remembered that on the occasion of first birth day of their child, respondent had taken leave and visited Mumbai, Pune and Goa with another woman. He had illicit relation with that woman. He had taken Insurance Policy through agent Evangeline. In February, 2009 the respondent visited Mumbai and Pune along with Evangeline on tour package. The respondent also transferred money from his account to the account of Evangeline. On 25.5.2011, the respondent had thrown out the appellant from his house with the warning that if she wanted to enter into his house, her father’s property should have to transfer in his name.
5. From the pleadings, the learned Family Court framed issues :
“(1) Whether respondent – wife after solemnization of marriage on 16.11.2005 treated petitioner – husband with cruelty ?
(2) Whether the respondent – wife has without any reasonable cause, deserted the petitioner husband continuously for more than two years ?
(3) Relief ?”
6. Respondent Lt. Col. Deepak Tyagi examined himself as AW-1 and his father Shri Virendra Singh Tyagi as AW-2. He exhibited 15 documents.
7. The appellant Neha Tyagi examined as NAW-1 and her father Shri Vinod Kumar Tyagi as NAW-2. She exhibited A-1 to Ex. A-15.
8. After hearing the learned counsel for the parties, the learned Family Court decided all the Issues in favour of the respondent and against the appellant.
9. Shri Rajendra Prasad, learned Senior Counsel for the appellant submitted that the impugned judgment and decree dated 19.5.2018 is ex-facie illegal, arbitrary and against the provisions of law. He submitted that the facts narrated in the divorce petition regarding cruelty and desertion are baseless and frivolous. Learned counsel for the appellant submitted that the respondent in his petition stated that appellant used to torture his parents, misbehaved him and insulted his parents. But the learned Family Court in its finding had categorically stated that the respondent had failed to prove the entire allegations of cruelty levelled in Paras-5 to 9 of the divorce petition. Learned counsel for the appellant submitted that the appellant never misbehaved her in-laws. But she was insulted, humiliated and tortured by them severally. Learned counsel for the appellant submitted that in the month of July-August, 2007 when she was pregnant and living with her husband at Shilong, during this period the respondent had not cared her. He did not take her to the doctor for necessary medical examinations because he wanted to present himself as unmarried man. He had relationship with other girls. The appellant had broken mentally when she came to know that her husband had illicit relation with other woman. Respondent represented himself as unmarried man which was evident from insurance policy taken by him as Ex. A-1 in which he had declared himself as single. Learned Family Court completely ignored this fact. In the insurance policy, instead of nominating appellant as nominee, he had nominated his father as nominee which indicate that he intentionally wanted to show his status as unmarried.
10. Learned Senior Counsel for the appellant submitted that the respondent had illegal relation with Miss Evangeline Wahlang from whom he had purchased insurance policy. Appellant had seen her e-mail on laptop of respondent in which she was demanding huge money from the respondent. Respondent had transferred Rs.50,000/- two times. For this, the appellant had exhibited respondent’s bank account as Ex. A-2 and Miss Evangeline’s bank account as Ex. A-3. Respondent had not given any explanation regarding transfer of this amount in the account of Miss Evangeline. If he had purchased insurance policy from her, he should have transferred the amount to the insurance company not personal account of Miss Evangeline Wahlang.
11. Learned Senior Counsel for the appellant submitted that the factor of infidelity was considered against the appellant because in her cross examination she admitted that she had not furnished any documentary evidence regarding infidelity. Learned counsel for the appellant submitted that no one in this world accept infidelity in writing. Inference of infidelity could be proved only by circumstantial evidence. In the present case for adulterous relationship of husband, the appellant had produced ample evidence in the learned Family Court but the learned Family Court had not appreciated this fact in right perspective. The learned counsel for the appellant submitted that in February, 2009 respondent visited Mumbai and Pune along with Miss Evangeline on tour package. He had transferred money from his ICICI Bank account to the account of Evangeline. During this trip, they stayed in Pune CME and later went to Goa. Tour expenses were paid from salary account of respondent. He also withdrew money from ATM in Goa. He had not explained as to why he booked ticket with Miss Evangeline. He also stayed in Army Guest House. For this, he used the room of married person. Learned counsel for the appellant also submitted that during counseling, respondent had clearly stated that he did not have such relation. From a bare reading of Ex. A-10, it became clear that he had relation with another woman prior to counseling.
12. Shri Rajendra Prasad, learned Senior Counsel for the appellant submitted that the fact of plural marriage was discarded on the premise that the lady was not found. As per report of Shilong Police Station and Meerut Police Station, the inquiry was closed because address of that lady was not found. If the inquiry was closed due to lack of evidence then inference could not be drawn that allegation of plural marriage was false. Learned counsel for the appellant submitted that at the time of ring ceremony, respondent had pressurized her father for cash. On their demand, Rs.4,00,000/- was given by demand draft. The respondent and his parents pressurized her to do job so that she could fulfill their demand. The respondent did not bear the expenses incurred in delivery. He had not come to celebrate first birthday of their child. In June, 2009 the appellant joined her matrimonial house at Jalandhar, but his behaviour remained same. On 25.5.2011, the respondent threw her out from the house with warning that if she wanted to live with him, she had to transfer her father’s property in his name. For cruelty regarding dowry, the appellant had lodged an FIR No.160/2016 against the respondent and his family members u/s 498A and 406 IPC. After investigation, chargesheet was filed against them and trial was going on. The learned Family Court discarded the factum of chargesheet on the premise that from evidence cruelty was not proved.
13. The maintenance had been granted to the appellant by Aastha Cell considering the cruelty on the part of the respondent. As per army rules, the maintenance could have been granted when it was found by the authorities that the army person had done cruelty with wife.
14. Learned Senior Counsel further submitted that the learned Family Court while assessing the factum of mental cruelty, wrongly placed reliance on Ex.-13 and 14, the complaints made by the appellant. Mere filing, complaint could not constitute mental cruelty specially when such complaint was under adjudication. The appellant had not been given any opportunity of hearing by the army authorities before passing order exonerating the respondent from allegations levelled by her.
15. The appellant wanted to live with the respondent. She had gone along with her father and uncle to the respondent’s house but they did not allow her. The learned counsel for the appellant also submitted that apart from the above submissions, future of Master Pranav Tyagi is to be considered who has no fault.
16. Learned counsel for the appellant in support of his arguments placed reliance on the following judgments –
(A) Anuradha Ghosh Moulick Vs. Subir Krishna Ghosh Moulick, (2008) ILR 1 Cal 411, (B) Mandeep Kaur Vs. Sukh Dev Singh, AIR 2006 Himachal Pradesh 97, (C) Raj Talreja v/s Kavita Talreja, (2017) 14 SCC 194, (D) Mithilesh Shrivastava v/s Smt. Kiran Shrivastava, AIR 2012 Chhattisgarh 21, (E) Mrs. Deeplakshmi Sachin Zingade v/s Sachin Rameshrao Zingade, AIR 2010 Bombay 16.
17. Shri Manoj Kumar Bhardwaj, learned counsel for the respondent submitted that behaviour of the appellant had always been quarrelsome and cruel. She left the matrimonial home at her own will. She had gone to her father’s house with permission to return within ten days, but she did not return. She lodged false complaints to the army authorities and later on in the office of Prime Minister and Defence Minister against the respondent.
18. Learned counsel for the respondent submitted that the appellant had made false complaints against the respondent as Ex.5, Ex.6, Ex.8, Ex.10, Ex.13 and Ex.14 in which she stated that the respondent had illicit relations with several girls and also done plural marriage. In complaint Ex.5 dated 3.7.2012, she stated that the character of the respondent was immoral and irresponsible. In complaint Ex.6 dated 22.4.2012, she stated that the respondent was dangerous for Defence and Nation. His integrity was doubtful. In complaint Ex.8 dated 1.5.2012, she repeated the allegations levelled in Ex.6 and also stated that the respondent was having extra marital affairs and he was a threat to Defence. He was holding sensitive position in GE and his integrity might be doubtful for the Nation. In complaint Ex.10 dated 29.9.2014, the appellant stated that the respondent was suffering from infidelity. For this, she gave phone numbers of several girls to whom the respondent had illicit relations. She also stated that the respondent had earned so much that nobody could do anything against him and he would leave army as soon as possible. In para -14, she also stated that he was involved in a bigger racket of a possible honey trap.
19. Learned counsel for the respondent submitted that on these complaints, the respondents was subjected to Army Enquiry and in this bid, the Army Authorities had written letters to the S.S.P – Meerut Police, DSWO – Shilong, S.S.P – Shilong, and also S.P.-Jaipur whereby inquiry was conducted with regard to character of respondent as well as the plural marriage. In inquiry report nothing proved against respondent and the Army Authorities closed down the complaints vide orders Ex.11 and 12. Thereafter, the appellant again sent reminders – Ex.13 and 14 with the same allegations. The appellant lodged a false report u/s 498A and 406 IPC against the respondent and his family members.
20. Learned counsel for the respondent submitted that in May, 2011 the appellant wanted to go Jaipur so he had made ticket for her and she left the respondent’s house on 25.5.2011 with promise to return within ten days. After that, she had not come. Respondent had gone to Jaipur in September; 2011, December; 2011 and January; 2012 and requested her to come with him, but all efforts were failed. The appellant in her cross examination admitted that the respondent had come on these days. Counsel for the respondent submitted that in counseling before Aastha Cell, the appellant had declined to live with him and she was desired to take maintenance and wanted to live in Jaipur.
21. Learned counsel for the respondent submitted that the respondent had not shown him as unmarried person. After marriage, he had declared him as a married person. For these, he had produced documents Ex.1 and 2 issued by the Army Authorities in which his marriage was registered.
22. Learned counsel for the respondent in support of his arguments placed reliance on the following judgments –
(A) Union of India Vs. Ibrahim Uddin and Another, (2012) 8 SCC 148, (B) Raj Talreja Vs. Kavita Talreja, (2017) 14 scc 194, (C) Smt. Aruna Jalan Vs. Capt. (now Major) Ramesh Chand Jala, AIR 1988 Allahabad 239, (D) K. Srinivas Rao Vs. D. A. Deepa, AIR 2013 SC 2176, (E) Smt. Savita Vs. Pankaj Meel, 2018(2) WLC (Raj.) UC 692, (F) Vishwanath Agarwal s/o Sitaram Agarwal Vs. Sarla Vishwanath Agarwal, (2012) 7 SCC 288.
23. We have given our thoughtful consideration to the arguments advanced by both the parties, perused the impugned order and the material available on record.
24. The appellant and respondent were married on 16.11.2005. The appellant had left the matrimonial home on 25.11.2011. Respondent Deepak Tyagi (AW1) in his statement clearly stated that he had got his marriage registered in Army record as Ex. 1 to Ex. 3. In March, 2007, the appellant lived with him at Manipur for two months. In June, 2007, the respondent was transferred to Shilong where the appellant lived with him in Government accommodation. During that period, the appellant became pregnant and the respondent had called his mother to look after her, but the appellant desired to go to Jaipur. So he booked her ticket for Jaipur. She did not come after a month and pressurized him to have the delivery of the child at Jaipur. In February, 2008 the respondent had come at Jaipur for 30 days’ leave and remained present till birth of the child. After birth, his son got pneumonia and therefore he had extended his leave for 15 days more. In June, 2009 he was transferred to Jalandhar. The appellant abused the parents of the respondent and she had not fulfilled matrimonial obligations. In May, 2011, the appellant desired to go at Jaipur so he had made ticket for Jaipur. On 25.5.2011, she had gone to Jaipur. After that, she had not joined till date. The respondent had gone to Jaipur and requested her to accompany him in September, 2011, December, 2011 and January, 2012 but he could not succeed. In August, 2011, the appellant gave an application for maintenance (Ex.4). In June, 2012 a counseling was made by Aastha Cell at Lucknow but she refused to live with him and desired to get maintenance. The appellant in her statement wrongly stated that she was thrown out from the house so she had been residing with her parents. The respondent in his statement clearly stated that he had booked ticket of 25.5.2011 for appellant on her desire. The appellant had not refuted this fact. The appellant in her statement admitted that the respondent had come to Jaipur to fetch her back on above mentioned dates, but she did not go. In complaint Ex.10, the appellant falsely alleged the respondent for plural marriage and stated that she would initiate proceedings for getting divorce. In this way, the learned Family Court rightly observed that the appellant had deserted the respondent without any reasonable cause.
25. Learned Family Court in its order clearly stated the appellant had levelled false and frivolous allegations against the respondent before the Army Authorities. The appellant, in complaints Ex.5, Ex.6, Ex.8, Ex. 13 and Ex.14, clearly stated that the respondent had illicit relations with several girls and also of plural marriage. Respondent Deepak Tyagi (AW 1) in his statement clearly stated that the appellant had tarnished his image and spoiled his career. Inquiry was held against him. In complaint, she had falsely stated about infidelity and plural marriage. The appellant also stated in the complaint that he had earned so much that nobody could do anything. He would leave army as soon as possible. It was also written in the complaint that it would be a bigger racket of possible honey trap. The appellant not only wrote to the higher authorities but also to Prime Minister and Defence Minister that the respondent is a threat to the Nation and Defence. The appellant in her statement admitted that she had made these complaints for adjudication of infidelity and plural marriage. Allegations of infidelity and plural marriage were found baseless because the appellant failed to produce the address of the girls.
26. In our opinion, the appellant had levelled false and frivolous allegations before the Army Authorities, the Prime Minister and the Defence Minister against the respondent in Ex.5, Ex.6, Ex.8, Ex.10, Ex.13 and Ex.14 with regard to having illicit relation with several girls, plural marriage, acquired money much more to his income involving honey tap etc. In inquiry, none of the allegations was found proved and the respondent was given clean chit by Annex. 1 and Annex. 12. After that, the appellant again filed complaint for re-investigation to the Prime Minister and the Defence Minister. The appellant had levelled false allegations against the respondent regarding fidelity and adulterous relation. She, in he reply and evidence before the learned Family Court, had stated that the respondent visited Mumbai and Pune with Ms Evangaline on tour package. He stayed in Pune CME guest house and later on, went to Goa. In Pune, he used the room of married person. The appellant in her statement stated that these facts came to her knowledge from certain army personnel but she had not produced evidence of any of them to prove these facts. All these allegations were made to tarnish the image of the respondent. These complaints or enquiry were found to be false and frivolous. The respondent had to face inquiries but these false allegations levelled by the appellant amounted to cruelty. Findings of the learned Family Court cannot be said to be unfounded. The learned Family Court, in our view, has rightly decided the issue of cruelty against the appellant.
27. In Vipin Chand v. Prabhawati, (AIR 1957 SC 176) the Hon’ble Supreme Court has observed as under :
“For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation; and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference, that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close.”
28. The Apex Court has also taken into consideration the legal position as summarised in Halsbury’s Laws of England with regard to desertion as under:
“In its essence desertion means the intentional permanent for saking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts of defining desertion, there being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a stage of things for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed for siprt ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.
The person who actually withdrawn from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exist independently of its duration, but as a ground for divorce it must exist for a period of atleast three years immediately preceding the presentation of the petition or where the offence appears as a cross charge, of the answer. Desertion as a grounds of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of section of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.
29. In Ren Prakash Versus Mst. Sneh Lata 2001(4) WLC (Raj.) 628, this Court has observed as under :
20. It may be stated that the word ‘cruelty’ cannot be put in strait-jacket formulla, of judicial definition. Since it is neither desirable nor possible to make any attempt to do so, for the same may prove abortive, since cases coming before the Courts have their peculiar individual facet calling for individualistic approach to tackle them. It is principally and essentially question of fact to be decided on the basis of pleading and the evidence brought on the record by the respective parties and then the Court has to assess whether the behaviour of the spouse is of such a degree and can no longer be considered to be the routine wear and tear of the married life.
21. A large number of case law had grown around the significance of what is sometimes termed ‘legal cruelty‘. Some broad general principles, which emerge from the decided cases including the cases of the Hon’ble Supreme Court, may be narrated here for guidance :-
1. 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 on which this principle was stated at least two of the Lords who decided the case of Jamieson v. Jamieson (1952 (1) All ER 875) in the House Lords this 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 of each of them that by themselves they cannot pass the test of cruelty and therefore, that the totality cannot pass that test.
2. It is undesirable, if not impossible to create categories of acts or conduct as having or lacking the nature or quality which render them capable or incapable in all circumstances amounting to mental cruelty. Nor is it necessary to compare acts as being gross and not 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 pass to which the marriage had come and of the state of mind of the parties. Since cruelty is to be inferred from the whole 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 cumulatively they do not amount 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’.
3. 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 hand. 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 one spouse on another should, judged in relation to all the surrounding circumstances, be found to amount to cruelty.
4. The existence of cruelty depends not merely on the magnitude, but at times also on the consequence of the offence, actual or apprehended.
5. Mental ill-treatment may be coupled with physical ill-treatment 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.
6. The primary question in these cases is not a question of 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 a priori assumptions that the parties are reasonable people.
22. In this respect, it may further be stated here that actual intention on the part of one spouse to injure the other is not an essential factor and that intentional acts may amount to cruelty even though there was no intention of being cruel. Motive, malignity or malevolent intention, it is well recognized, are not essential ingredients but where they exist they would be factors of considerable importance.
23. Thus, it can be said that no hard and fast rule can be laid down as to what acts or conduct will amount to cruelty. What may amount to cruelty in one case may not amount to cruelty in another case. In deciding whether or not a particular state of affairs amounts to legal cruelty, the Court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and manners of the parties. Whether acts and conducts complained of constitute cruelty have to be construed in reference to the whole matrimonial relationship. It may be that various acts or conduct complained of by itself and in isolation to each other, do not amount to cruelty, but in their overall effect they may amount to cruelty.
30. The word “cruelty” has not been defined. It is to be seen in the facts and circumstances of each case. A set of facts stigmatised as cruelty in one case may not be so in another case.
31. In the celebrated English decision King v. King, 1952 (2) All England Reports 584, Lord Normand observed as under:
“The general rule in all questions of cruelty is that the whole matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complains accusations or taunts. willful accusations may be made which are not true and for which there are no probable grounds and yet they may not amount to cruelty. To take an obvious example, they may have been provoked by the cruel conduct of the other spouse. There is in many cases no easy rule, no clear line of demarcation which divides cruelty from something which does not amount to cruelty.”
32. In the case of Harton v. Harton, (1940) 3 All E.R. 380 it was observed that:
“Mere conduct which causes injury to health is not enough. If he marries a wife whose character develops in such a way as to make it impossible for him to live happily with her, I do not think that he establishes cruelty merely because he finds that life with her is impossible. He must prove that she has committed willful and unjustifiable acts inflicting pain and misery upon her and causing injury to his health.”
33. In the case of McEwan v. McEwan, 1964 108 Sol. Jo 198 CA, Lord Denning held that:
“Cruelty being a question of fact the circumstances of each case must be taken into consideration, including the physical and mental condition and the position in life of the parties. However, the conduct complained of must be serious and higher than the ordinary wear and tear of married life.”
34. The House of Lords in the case of Gollins v. Gollins, (1964) A.C. 644 held as under:
“A distinction can be drawn between cases involving “unequivocal” conduct, which is conduct which clearly constitutes cruelty, and those involving “equivocal” conduct, conduct which may in certain circumstances amount to cruelty and in other circumstances not do so. The cruelty alleged here is plainly in the second category. There is no fundamental distinction between cruelty which gives rise to grounds for judicial separation and that which gives rise to grounds for divorce. The principles so far evolved from the authorities serve well enough in deciding cases in the first category, but there is no other guidance where the conduct complained of may be described as negative, or indirect, or not aimed at the other spouse or as unaggressive.”
35. This Court in the matter of Smt. Maya v. Brij Nath, AIR 1982 Delhi 240, while dealing with concept of cruelty in the Hindu Marriage Act as under:
“Cruelty has not been defined in the Act. But it is now well settled that the conduct should be grave and weighty so as to make cohabitation virtually unendurable. It must be more serious than the ordinary wear and tear of marriage.
The cumulative conduct taking into consideration the circumstances and the background of the parties has to be examined to reach a conclusion whether the act amounts to cruelty. The petitioner in a divorce petition has to prove that he was treated with cruelty. The burden of proving the cruelty lies on him.”
36. In Dastane v. Dastane, I, the Supreme Court held as under:
“that where an allegation of cruelty is made, the inquiry has to be ‘whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent’. “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 give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other….But under Section 10(1)(b), harm or injury to health, reputation, the working career or the life, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty.
Plainly, what we must determine is not whether the petitioner has proved 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 a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent’.”
37. The Supreme Court in the case of Shobha Rani v. Madhukar Reddi, I, observed as under:
“Section 13(1)(i-a) uses the words “treated the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been denied. It has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First the inquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases whether the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea- change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with us and the parties. It would be better if we keep aside our customs and manners. It would also better if we less depend upon precedents.”
38. The Supreme Court in the case of V. Bhagat v. Mrs. D. Bhagat, has defined mental cruelty in the following manner:
“Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
39. Lord Denning in Sheldon v. Sheldon, (1966) 2 All E.R. 257, 259 observed as under:
“The categories of cruelty are not closed. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty.
New type of cruelty may crop up in any case depending upon the human behavior, capacity or incapacity to tolerate the conduct complained of. Such is the wonderful realm of cruelty.”
“The conduct of the habitual drunkard, the gambler, the criminal or the profligate may cause his wife to break down in health but it is not cruelty unless combined with some conduct which is aimed at her, as, for example, when her justifiable remonstrances provoke unjust resentment on his part directed at her.”
The judgments relied upon by the learned Senior Counsel for the appellant do not help the appellant because the facts of the present case are different from the judgments relied upon by him.
In Anuradha Ghosh Moulick’s case (supra), the Calcutta High Court observed that the husband was not entitled to get a decree for divorce on the ground that wife made baseless allegations against her husband in the written statement. In evidence, she regretted the misunderstanding and wished to go back to her matrimonial house, on account of false statement given on record by the wife, the Lower Court wrongly decreed the suit on the ground of cruelty.
In Mandeep Kaur’s case (supra), the Himachal Pradesh High Court observed that registering false case against the husband and his relatives is amount to cruelty and husband is entitled to get decree of divorce.
In Raj Talreja’s case (supra), the Apex Court held that mere filing of complaint is not cruelty if there are justifiable reasons to file complaints and in criminal case may not be ground to treat such accusations of wife as cruelty within the meaning of Hindu Marriage Act, 1955. The Apex Court also held that if it is found that allegations are patently false then there can be no manner of doubt that such conduct of spouse levelling false accusations against other spouse would be act of cruelty.
In Mithilesh Shrivastava’s case (supra) and in Mrs. Deeplakshmi Sachin Zingade’s case (supra), the High Court observed that if complaints were filed bonafidely without malafide intention, then this will be no ground of cruelty.
40. Analysis of the facts in the light of law fore-discussed, we find no illegality and infirmity in the order dated 19.5.2018 passed by the learned Family Court. The appeal is devoid of merit and liable to dismiss.
41 We are of the considered opinion that the learned Family Court has not committed any error in allowing the divorce petition filed by the respondent. Therefore, we are persuaded to reject the appeal and accordingly, it is dismissed.
(NARENDRA SINGH DHADDHA),J
(MOHAMMAD RAFIQ),J
RAJ KUMAR CHAUHAN