Court: Uttarakhand High Court
Bench: JUSTICES Rajiv Sharma, J. & Alok Singh
Indu Kukreja Vs Deepak Kukreja On 13 April 2018
Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Mental Cruelty — Appellant-wife indulged in character assassination of respondent-husband in presence of PWs — They are independent witnesses — One of the witnesses came to settle matter, but in her presence also appellant-wife picked up quarrel and called her husband characterless — Acts of appellant caused mental and physical cruelty to respondent — It was not possible to live with wife under same roof by respondent — Custody of child cannot be handed over to appellant.
JUDGEMENT
1. Since the common questions of law and facts are involved in the above numbered appeals, hence these are being taken together and are being adjudicated by this common judgment.
2. These appeals are instituted against the judgment dated 5.12.2015 rendered by learned Additional Judge, Family Court, Dehradun in O.S. No. 333 of 2011, Deepak Kukreja v. Smt. Indu Kukreja. The respondent/husband has instituted a suit under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 against the appellant for divorce on the ground of cruelty. The appellant has filed the reply and counter-claim. The Trial Court allowed the suit filed by the respondent-husband under Section 13(1)(i-a) of the Hindu Marriage Act and dismissed the counter-claim filed by the appellant vide impugned judgment dated 5.12.2015.
3. “Key facts” necessary for the adjudication of these appeals, are that the marriage between the parties was solemnized on 13.4.2003. One son was born out of the wedlock on 5.4.2004. According to the material placed on record, the relations between the parties were cordial for few years, but thereafter, their relations deteriorated. According to the averments made in the plaint, the appellant used to harass the respondent-husband. She also used to harass the family members of the respondent. The quarrel took place on 26.9.2010. The wife/appellant made wild allegations against her husband that he had illicit relations with his mother. The neighbours came on the spot and this incident was witnessed by them. The acts of the wife-appellant have caused physical and mental cruelty to the respondent-husband. The allegations were refuted by the appellant. According to the appellant, she was harassed for bringing insufficient dowry. She was not properly looking after by her husband. Learned Trial Court decided the matter and dissolved the marriage between the parties and the respondent-husband was directed to pay alimony of Rs. 10 lakh to the appellant. The wife-appellant was constrained from interfering with the custody of the son. Thereafter, the appellant vacated the premises occupied by her. Hence, the present appeals.
4. Mr. Dharmendra Barthwal, Advocate appearing on behalf of the appellant, has vehemently argued that the Trial Court has misconstrued the oral as well as documentary evidence. According to him, the respondent-husband has failed to prove the cruelty.
5. Mr. Piyush Garg, Advocate appearing on behalf of the respondent-husband has supported the impugned judgment 5.12.2015 passed by learned Addl. Judge, Family Court, Dehradun.
6. We have heard learned Counsel for the parties and also gone through the impugned judgment as well as lower Court record very carefully.
7. The marriage as noticed above was solemnized between the parties on 13.4.2003. The husband-respondent has led his evidence by filing the affidavit. He was cross-examined. He has given various instances when the quarrel has taken place between him and his wife. He was forced to live separately by his wife. The appellant has started quarrelling with the family members of the respondent on 13.9.2010. The wife in the presence of witnesses had made wild allegations that he had illicit relations with his mother. He was shocked. He became unconscious. He was rushed to the hospital. The wife used to call him impotent and used to threaten that he would get the DNA test of his son conducted to prove that he was not his son. The acts of the wife caused him physical and mental cruelty. He has tried to save the marriage but to no avail.
8. PW-2 –Smt. Pawan Kukreja is the mother of respondent. She has corroborated the statement of PW-1. She has deposed that on 23.10.2010, her daughter-in-law has made wild allegations that she had illicit relation with her son. This incident shocked her. The appellant used to harass the family members. She used to threaten that she would cut her veins and would falsely implicate them in criminal cases.
9. PW-3 Rajkumar Trehan has also testified that the incident has taken place in the year 2010. He tried to pacify the parties. The wife-appellant has levelled wild allegations against her husband that he had illicit relation with his mother. He was also cross-examined.
10. PW-4 Maninder Pal Singh Bamra has also deposed that appellant-wife has made wild allegations against her husband that he had illicit relation with his mother.
11. PW-5 Gurcharan has also testified that he has tried to settle the matter between the parties. In the meantime, the wife chided her husband to be impotent. He had illicit relations with his mother.
12. The appellant has appeared as DW-1. According to her, the husband has started picking up quarrels on the very first day. She had tried to save the marriage. Her husband has eloped with the girl before her marriage. She admitted in her cross-examination about the DNA test and called her husband impotent. She has admitted that after the incident, Maninder Pal Singh, Rajkumar Trehan and Amita Trehan came on the spot. The appellant has levelled very serious allegations against her husband. It is unbelievable that son would ever have illicit relations with his mother. She has called her husband impotent. She used to pick up the quarrels with her husband and his family members. She has indulged in character assassination of her husband in the presence of PW-2, PW-3, PW-4 and PW-5. They are independent witnesses. One of the witnesses had come to settle the matter, but in her presence also, the appellant has picked up the quarrel and called her husband characterless. The acts of the appellant have caused definitely mental and physical cruelty to the respondent. It was not possible for the husband to live with the wife under the same roof.
13. Their Lordships of the Hon’ble Supreme Court in I (1988) DMC 12 (SC)=1987 (SLT SOFT) 241=AIR 1988 SC 121 in the case of Shobha Rani v. Madhukar Reddi, have explained the term “cruelty” as under:
“4. 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 defined. It has been used in relation to human conduct or human behaviour. 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 enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in 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 where 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.
5. 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 them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon, [1966] 2 All E.R. 257 (259) “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 behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful/realm of cruelty.”
14. Their Lordships of the Hon’ble Supreme Court in I (2007) DMC 597 (SC)=IV (2007) SLT 76=(2007) 4 SCC 511 in the case of Samar Ghosh v. Jaya Ghosh, have enumerated some instances of human behaviour, which may be important in dealing with the cases 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.”
15. In view of the above facts and circumstances, the custody of the child cannot be handed over to the appellant.
16. Accordingly, there is no merit in these appeals and the same are hereby dismissed.
Appeals dismissed.
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