Court: RAJASTHAN HIGH COURT
Bench: JUSTICE Ajay Rastogi, J. & Mr. Ashok Kumar Gaur
Geeta Vs. Raghuveer Singh On 17 July 2017
Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Mental Cruelty — Extra marital relations — No reliable evidence — No foundation — Wife alleges illicit relation against husband with her maternal grand mother and other female — Caused mental cruelty to respondent husband — Serious aspersion on character of a person — Ground of cruelty well established from pleadings on record.
JUDGEMENT
The present appeal has been filed by appellant-Smt. Geeta (wife) against the judgment and decree dated 21.11.2008 passed by the Judge, Family Court, Ajmer, whereby a decree of divorce was granted against the appellant.
2. The husband of the appellant viz. Raghuveer Singh-the respondent, filed an application under Section 13 of the Hindu Marriage Act for seeking a decree of divorce on the ground of cruelty and desertion. The respondent pleaded in his application that he was married to appellant-Smt. Geeta on 9.7.1984 as per Hindu Rites. The appellant had left the matrimonial home on 26.7.1986 and since last 21 years she was residing with her own parents and she had deserted the respondent-husband without any justification. It was further pleaded in the application that the appellant-wife never made any efforts to restore the normal marriage relation for last so many years. The respondent-husband pleaded that the appellant had filed an application under Section 125, Cr.P.C. dated 29.4.1989 for claiming maintenance and in para-4 of her application, she levelled allegation about character of the respondent. It was further pleaded in the application that due to baseless and false allegations about character of the respondent, he suffered mental agony and his image was lowered down in the society and as such, mental cruelty was caused to him. The respondent also pleaded the fact of leaving matrimonial home without any reason and in spite of several persuasions, the appellant-wife refused to come to the matrimonial home.
3. The appellant-wife filed reply to the application raising preliminary objection of maintainability of said divorce petition on the ground of res judicata as earlier application under Section 13 of the Hindu Marriage Act (No.259/1988) was dismissed on 26.4.1985. It was pleaded that the respondent had forcibly turned her out from matrimonial home and she was staying not on her own but due to polluted environment created by the respondent. It was pleaded in para 8 of the reply that the respondent-husband had relation with other lady and on protest being raised by her, she was given beating and was turned out of matrimonial home.
4. The Court below on the basis of the pleadings framed following issues:
“Hindi matter omitted”
5. In support of divorce petition, the respondent produced 3 witnesses, AW-1 Raghuveer Singh (himself), AW-2 Hukam Singh (maternal grand-father of the appellant) and AW-3 Sohan Lal.
6. The appellant in support of her case produced herself as NAW-1 and Bhagwan Singh (NAW-2) (brother-in-law of the appellant) as well as NAW-3 Ved Prakash (neighbour of the appellant).
7. The Court below on the basis of pleadings and evidence came to the conclusion that the issue No. 1 relating to cruelty was proved by the respondent and it recorded a finding that the appellant-wife had levelled allegation of having illicit relation with one Premlata who was maternal grand-mother (naani) of the respondent. It was held that the respondent was brought up and got married by her maternal grand-mother and in support of such assertion, the husband of Premlata i.e. Hukam Singh (maternal grand-father) also gave statement that the allegation of illicit relation with Premlata was absolutely baseless. The Court below found that the appellant miserably failed to prove that the respondent had any illicit relation with her maternal grand-mother and allegation about character of the respondent was absolutely false and without any foundation. It was found that false allegation about character assassination of a husband by a wife was definitely coming within ambit of cruelty and such allegation indeed affected the prestige and reputation of the respondent and was taken as mental cruelty as envisaged under Section 13(1) (i-a) of Hindu Marriage Act.
8. The Court below with respect to the finding of issue No. 2 on ‘desertion’ also came to the conclusion that the appellant was living separately from the last 21 years and in spite of several efforts being made to bring back the appellant, including holding of Panchayat, resulted into not convincing the appellant to come back to matrimonial home. It was found that the appellant had voluntarily deserted the respondent for 21 years without any valid justification
9. Issue No. 3 with regard to res judicata was decided by holding that the application under Section 13 of the Hindu Marriage Act, which was filed had separate cause of action and the allegations levelled against the character of the respondent husband causing mental cruelty and facts relating to desertion were not subject matter of earlier application. The issue Nos. 4 and 5 with regard to grant of relief were decided in favour of the respondent.
10. Learned Counsel for the appellant has contended before this Court that the findings of the Court below on issue Nos. 1 and 2 are not legally sustainable as they are contrary to the material on record and as such, suffers from perversity. Learned Counsel has urged that the fact of mental cruelty was not proved and as such, the marriage could not have been dissolved on the ground of mental cruelty.
11. Learned Counsel has further urged that the finding with regard to desertion is also not sustainable as the appellant was always ready and willing to go to matrimonial home. Learned Counsel for the respondent-husband has supported the order passed by the Court below and has urged that after considering the entire evidence and material on record, the decree of divorce has rightly been passed by the Court below.
12. We have considered the rival submissions and perused the record.
13. Cruelty, which is a ground for dissolution of marriage, is wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental or as to give rise a reasonable apprehension of such a danger. The mental cruelty falls within purview of a matrimonial wrong. The cruelty has been used in relation to human conduct and human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. Cruelty can be intentional or unintentional. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be by conduct, words, gestures, by a mere silence, violent or non-violent.
14. The various decisions of the Apex Court lay down the principle of adjudging the cruelty. The Apex Court in the case of Narendra v. K. Meena, VI (2016) SLT 778=233 (2016) DLT 149 (SC)=(2016) 9 SCC 455, while dealing with the issue of mental cruelty by leveling baseless allegation without foundation has found it to be a very serious nature and it has been held that such kind of baseless and false allegation surely can be a cause for mental cruelty. The Apex Court has held in the said judgment as under:
“15. With regard to the allegations about an extramarital affair with maid named Kamla, the re-appreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had levelled allegations with regard to an extra-marital affair of the appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person—be it a husband or a wife.
16. We have carefully gone through the evidence but we could not find any reliable evidence to show that the appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extramarital life to be quite serious and that can surely be a cause for metal cruelty.
17. This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, has held as under:
“7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of un-chastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.”
15. The word “cruelty” has not been defined in the Hindu Marriage Act and there cannot be any comprehensive definition of the concept of “mental cruelty” within which all kinds of cases of mental cruelty can be covered. The Apex Court while dealing with the gamut of cruelty has laid down various instances of mental cruelty on illustrative basis and has further held that the concept of “mental cruelty” cannot remain static. It is bound to change with the passage of time. The Apex Court in the case of Samar Ghosh v. Jaya Gosh, I (2007) DMC 597 (SC)=IV (2007) SLT 76=(2007) 4 SCC 511, has dealt with issue of mental cruelty as under:
“98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No Court in our considered view should even attempt to give a comprehensive definition of mental cruelty.
99. 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.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket 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 while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(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.
(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.
(iii)
Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(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.
(v)
A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi)
Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(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.
(viii)
The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix)
Mere trivial irritations, 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.
(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 ill-conduct 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.
(xi)
If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii)
Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii)
Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(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.”
16. The Apex Court in the case of Ramchander v. Ananta, II (2015) DMC 34 (SC)=III (2015) SLT 551=(2015)11 SCC 539, has reiterated that “mental cruelty” is necessarily a matter of inference to be drawn from the facts and circumstances of the case and instances of cruelty are not taken into isolation but cumulative effect of facts and circumstances emerging from evidence on record and then drawing a fair inference whether a person has been subjected to mental cruelty due to conduct of the other spouse. It has been further held that the “mental cruelty” as set out in Sammar Gosh (supra) are only illustrative and not exhaustive. The relevant para of the said judgment is reproduced as under:
“10. The expression ‘cruelty’ has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of ‘mental cruelty’ can be drawn and they are only illustrative and not exhaustive.”
17. The facts which have come on record in this case clearly reveal that the appellant had levelled allegations against the respondent of having illicit relation with her maternal grandmother (naani). It was pleaded in the application filed by the appellant-wife under Section 125, Cr.P.C. that the character of the respondent was not good and he was also having relation with other female. The said allegations without any foundation definitely amounts to causing mental cruelty to the respondent. In society, if anybody alleges about illicit relation with pious relations of maternal grand-mother, it is a serious aspersion on character of a person and on his entire background. Such kind of allegations levelled either of spoken words or in writing constitute mental cruelty and thereby prestige and character of a person is at stake not only in his own esteem but in society as well.
18. The submission of the Counsel for the appellant about cruelty not being caused needs to be rejected as the Court below after considering the entire evidence has found that the ground of cruelty has duly been established by the respondent. We have carefully gone through the evidence but we could not find any reliable evidence to hold that the respondent had any extra marital affairs with someone else except baseless and reckless allegations. Levelling of absolutely false allegation with regard to an extra martial relations is quite serious and that can surely be a cause for mental cruelty. In the present case, ground of cruelty has been well established from the pleadings on record.
19. The learned Family Court has found ‘desertion’ as second ground to grant decree of divorce. For establishing the ground of desertion as far as deserting espouse is concerned, two conditions are necessary: (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end (animus descerendi). Similarly, two elements are essential so 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.
20. The Apex Court in the case of Malathi Ravi, M.D. v. B.V. Ravi, M.D., II (2014) DMC 483 (SC)=210 (2014) DLT 733 (SC)=V (2014) SLT 675=(2014) 7 SCC 640 has laid down the law for proving the desertion. Inferences may be drawn from certain facts of those acts or by conduct, expression of intention, both anterior and subsequent to the actual acts of separation. The relevant para is quoted here under:
“18. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the petition and the evidence adduced by the parties and the judgment of the Family Court and that of the High Court. The plea that was raised for grant of divorce was under Section 13(1)(i-b) of the Act. It 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 aforesaid provision stipulates that a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion, as a ground for divorce, was inserted to Section 13 by Act 68 of 1976. Prior to the amendment it was only a ground for judicial separation.
19. Dealing with the concept of desertion, this Court in Savitri Pandey v. Prem Chandra Pandey, has ruled thus:
“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 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 a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati (supra), held that if a spouse abandons the other in a state of temporary passion, for example, anger [pic]or disgust without intending permanently to cease cohabitation, it will not amount to desertion.”
20. In the said Savitri Pandey case, reference was also made to Lachman Utamchand Kirpalani’s case wherein it has been held that 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 offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (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. 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 by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.”
21. The challenge with regard to finding on issue No. 2 about desertion also needs to be rejected as indisputably the appellant-wife left the matrimonial home on 26.7.1986 i.e. almost after two years of the marriage and admittedly, the appellant was living on her own for almost 21 years, whereas, the application for divorce was filed in the year 2007. In our view, the ground of desertion is also well supported by the pleadings and evidence on record.
22. Consequently, we do not find any legal infirmity in the impugned judgment and the present appeal deserves to be dismissed. In the result, the present appeal is dismissed. No order as to cost
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