Court: Calcutta High Court
Bench: JUSTICES V Gupta & D Kundu
Manisha Jha (Smt.) vs Kunal Kanti Jha on 21 January, 1998
Law Point:
Wife asking Husband to get separated from parents and brothers .
JUDGEMENT
1. This appeal is arising out of a judgment and decree dated 6.9.1995 and 20.9.1995 respectively passed by the 2nd Additional District Judge at Barasat in Matrimonial Suit No. 33 of 1992 dissolving the marriage between the appellant and respondent.
2. The marriage between the appellant (hereinafter referred to as wife) and the respondent (hereinafter referred to as husband) was solemnised on 21.6.1991 according to Hindu rites at Ichapur within the State of West Bengal. After the marriage both the husband and wife resided together at flat No. 5, 37/1, Vivekananda Road, Calcutta-35. The said flat was comprising of two bed rooms, one dining room, one kitchen, two bathrooms and one balcony. On 29.6.1991 both the husband and wife left for Ranchi for ‘dwira gaman”. Wife’s father resides at Ranchi. On 8.7.1991 both the husband and wife returned to Calcutta from Ranchi. On 11.8.1991 the wife left for Ranchi to spend the month of Bhadra with her parents at Ranchi. Thereafter some letters were exchanged between the husband and the wife and also between the father of the husband and father of the wife. It appears that the first letter of the wife dated 17.8.1991 was written to the husband which was received by the husband on 20.8.1991 and thereafter in August, 91 the husband sent a reply to the wife. On 11.9.1991 the wife wrote the second letter and on 29.9.1991 the husband sent the reply of the second letter. On 3.10.1991 wife’s father wrote a letter to the father of the husband. On 31.7.1991 husband’s father wrote a letter to the wife’s father. Details to these letters will be discussed lateron. On 30.11.1991 the husband filed an application under Sections 14(1) and 14(2) of Hindu Marriage Act, 1955. Leave was granted by the Court and the application under Section 13(1)(ia) of the Hindu Marriage Act was filed by the husband. On 23.12.1991 the wife filed an application under Section 125 of Criminal Procedure Code at Ranchi. On 27.1.1992 wife filed a suit under Section 9 of the Hindu Marriage Act, 1955 at Ranchi. On 16.6.1992 wife filed a complaint case under Sections 498A, 406 of I.P.C. and Sections 3 and 4 of Dowry Prohibition Act, 1961 at Ranchi. On 20.9.1995 decree was passed under Section 13(1)(ia) of Hindu Marriage Act, 1955 dissolving the marriage between the husband and wife.
3. Section 14 of the Hindu Marriage Act, 1955 reads as follows:
“14. No petition for divorce to be presented within one year of marriage.–(1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, (unless at the date of the presentation of the petition one year has elapsed) since the date of the marriage :
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented (before one year has elapsed) since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the (expiry of the one year) from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the (expiration of the said one year) upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the (expiration of one year) from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the (said one year.)”
4. A Division Bench of this High Court in an appeal from Original Decree No. 73 of 1987 Rabindra Nath Mukherjee v. Smt. Iti Mukherjee alias Chatterjee, in their judgment dated 22.1.1991, inter alia, held as follows:
“I have already indicated that, in my view, the utility of the provision of Section 14 is very much doubtful. And the observations of the Law Commission of India, extracted hereinabove, also go to show that in the view of the Law Commission also, the provisions serve no useful purpose, so much so, to warrant deletion. It may be wrong, but I have no doubt that if a legislative provision is that useless, it should, so long it exists, be construed to be directory and no mandatory, unless such construction is not at all reason-ably possible. I would accordingly be inclined to hold that the provisions of Section 14 are not mandatory as in my view the contrary construction is not irresistible.”
5. In the aforesaid case the Division Bench of this High Court, inter alia, considered Section 14(1) of the Hindu Marriage Act, 1955. Sub-section (2) of Section 14 of the Hindu Marriage Act was not considered by the Division Bench. Subsection (2) of Section 14 of the Hindu Marriage Act lays down that in disposing of any application under Section 14 of the Hindu Marriage Act for leave to present a petition for divorce before the expiration of one year from the date of marriage the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year. Family being the nucleus of the society if families are broken it is sure to have a telling effect upon the society. Therefore, every effect should be made to avoid breaking down of families. All effort should be made for reconciliation of the dispute between the husband and wife to avoid breaking down of a family. That is why Sub-section (2) of Section 14 of Hindu Marriage Act was enacted laying down that the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of one year from the date of marriage while disposing of any application under Section 14 of the Hindu Marriage Act for leave to present a petition for divorce before the expiration of one year from the date of marriage. The use of the word shall has made the provision mandatory. Therefore, it is bounden duty of the Court, while disposing of an application under Section 14 of the Hindu Marriage Act to have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year. It should be apparent from the face of the order passed by the Court under Section 14 of the Hindu Marriage Act that the Court had regard to the interests of any child or children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.
6. On 30.11.1991 the Court while disposing of the application under Section 14(1) and (2) of the Hindu Marriage Act, 1955 passed the following order :
“Petitioner files an application under Section 14(1) and (2) of the Hindu Marriage Act, 1955 supported by an affidavit praying for leave of the Court to present the suit for reasons stated therein.
Perused the record including the application supported by affidavit praying for permission to file the suit before the expiry of one year from the date of marriage. The application is in accordance with the provisions in the proviso of the Hindu Marriage Act (Calcutta High Court Rules, 1957). It appears to me that this is a case of exceptional on the petitioner and as such the prayer for filing the suit before the expiry of the one year from the date of marriage is allowed.”
7. From the abovequoted order dated 30.11.1991 it does not appear that while disposing of the application under Section 14 of the Hindu Marriage Act the Court had regard to the question whether there was a reasonable probability of a reconciliation between the parties before the expiration of one year from the date of marriage. However, it appears from the records that lateron attempts were made for reconciliation but proved futile. Admittedly the husband filed a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground that the wife has, after the solemnisation of the marriage, treated the husband with cruelty.
8. On 21.12.1992 the following issues were framed by the Trial Court :
(1) Is the suit maintainable in its present form and in law ?
(2) Is the respondent guilty of cruel conduct towards the petitioner ?
(3) Did the respondent desert the company of the petitioner without any lawful excuse ?
(4) Is the suit barred by Section 14 of the Hindu Marriage Act ?
(5) What relief, if any, is the petitioner entitled to ?
9. As ground for divorce the term ‘cruelty’ consists of unwarranted and unjustifiable conduct on part of defendant causing other spouse to endure suffering and distress, thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. The term includes mental injury as well as physical. Generally, single act of cruelty is not sufficient for divorce there must be course of cruel conduct over period of time. Harm or 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. 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 as to give rise to a reasonable apprehension of such a danger. Therefore, what the Courts 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. (Dastane v. Dastane, .
10. At this stage we may refer to the observation of Supreme Court in V. Bhagat v. D. Bhagat (Mrs.), . In paragraph 16 of the reported decision, Supreme Court observed as follows :
“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 expected to live together. The situation must be such that the wronged party 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 ixias case of accusations and allegations, regard must also be had to the context in which they were made.”
11. During the trial four witnesses were examined on behalf of the husband and five witnesses were examined on behalf of the wife. Good number of documents were exhibited.
12. It appears from the evidence that admittedly the husband and wife lived together for few days only. The alleged cruelty may be divided into two parts namely, (a) cruelties alleged to have been perpetrated by the wife during her short span of stay between the date of marriage on 21.6.1991 and 11.8.1991 when she left for Ranchi, and (b) cruelties alleged to have been perpetrated thereafter during her stay at her paternal house at Ranchi by her statements made in the letters. Admittedly the complaint case filed by the wife under Sections 498-A, 406 of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act, at Ranchi is still pending and therefore, we do not make any comment or observation about the subject matter of that complaint case. The complaint case will be decided according to its merits by the learned Court before which it is pending.
13. We have carefully considered the evidence produced at the time of trial. It is proved that the wife was not at all happy with the size of the flat where she was having her matrimonial home. It is also proved from the evidence that she was also not happy about the arrangements of living in the said flat. It is also proved from the evidence on record that the wife was not at all happy about the attachment between her husband and her mother-in-law. It is also the case of the wife that she asked the husband to take a quarter at Barasat, the place where the husband was posted but the husband did not realise the difficulties of the wife and refused to do so under the instruction of his parents and the result was that the wife had no privacy, comfort and peace of mind and she developed mental tension and fell ill in her matrimonial home. The wife in her evidence stated :
“I also visited Ranchi for the second time on 11th August, 1991, my sister and her husband visited the Baranagar flat. At that time I went to Ranchi with my elder sister. The brother-in-law escorted us upto Howrah Station wherefrom my sister and I only went to Ranchi by train. It is not true that my husband had accompanied us upto Howrah Station. The month of Bhadra was to commence with effect from 18th August the ritual goes like this that in the month of first Bhadra after marriage the bride is not to spent night at her matrimonial house; so I went back to Ranchi. I arrived Ranchi on 12th August, by Howrah Hatia Express. My costly sarees and other valuable personal effects including ornaments were left at Baranagar flat in a large Aristocrat suitcase. I wanted to take the ornaments with me, but my mother-in-law warned that as we only two female persons were going without any male escort there was a risk of loss by theft or otherwise and so she wanted the ornaments to be left back. So I did not take the ornaments with me. Before I started I wanted a sum of Rs. 800/- from the petitioner as my pocket money. He did not give me a farthing but his mother gave me Rs. 100/-.”
But the wife in paragraphs 8 and 9 of her written statement stated as follows :
“8. That the averments made in paras 4 and 5 of the petition are not wholly correct. The respondent was taken to her father’s place at Ranchi on 12th August, 1991 as she had mental tension, physical ailments for want of comforts, peace etc., as stated above.
9. That the allegations made in para 6 of the petition are not correct and the same are denied. The respondent was brought to Ranchi from Calcutta on 12th August, 1991 by her elder sister Narayani Ojha and brother-in-law Santosh Kumar Ojha in shattered health as she had B-Coloi infection at Calcutta which was not properly treated. The respondent was also suffering from great mental tension which was due to the negligence and ill-treatment meted out to her by the petitioner and his parents and other members at the matrimonial house. After arrival at Ranchi the respondent fell seriously ill and she was placed under the treatment of Dr. Usha Rani Senior Doctor and Associate Professor of Gyanecology, Rajendra Medical College Hospital, Ranchi. In course of check-up on 9.9.1991 the said doctor found that the respondent was in the family way and she required intensive medical care and rest. She prescribed medicines and advised that the blood of the respondent and her husband should be examined to determine blood group and R.H. Typing. Consequently the blood of the respondent was examined by the Pathologist who submitted report. The father of the respondent wrote to the father of the petitioner at Calcutta that the respondent was in family way and according to the advise of the doctor the blood of the petitioner was also to be examined and he requested the father of the petitioner to send him to Ranchi for his blood examination.”
Thus it is evident that in her evidence the wife did not say that she was taken to Ranchi as she had mental tension, physical ailments for want of comfort, peace etc. The wife did not say that on 11th August, 1991 she left for Ranchi in shattered health as she had B-Coloi infection which was not properly treated. The wife in her evidence did not say that on 11th August, 1991, she left Calcutta for Ranchi because she was also suffering from great mental tension which was due to the negligence and ill-treatment meted out to her by the husband and his parents and other members at the matrimonial house. Under these circumstances the serious allegations made by the wife in paragraphs 8 and 9 of the written statement amounts to cruelty committed by her towards husband within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955. It may be kept in mind that the husband is a Class-I Government Officer. He has a status in the society. The allegations made by the wife in the written statement are very serious in nature and if the allegations are not correct then it definitely amounts to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act. The evidence of the wife as quoted clearly proves that it is her own case that she left Calcutta for Ranchi on 11th August, 1991 because ritual goes like this that in the month of first Bhadra after marriage the bride is not to spend night at her matrimonial house. Therefore, the reasons stated by the wife in paragraphs 8 and 9 of her written statement for leaving Calcutta on 11th August, 1991 for Ranchi are not at all correct. A Division Bench of this High Court in Amarendranath Sanyal v. Krishna Sanyal, reported in 1993 (1) CHN 213=I (1993) DMC 565, held that post-suit allegations may be taken into consideration. We are of the view that the allegations of the wife in her written statement that she left Calcutta on 11th August, 1991 for Ranchi as she had mental tension, physical ailments for want of Comfort, peace etc. and that she left Calcutta in shattered health as she had B-Coloi infection at Calcutta it was not properly treated and that she was also suffering great mental tension which was due to the negligence and ill-treatment meted out to her by the husband and his parents and other members of the matrimonial house amounts to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955.
14. From the evidence on record and the statements made in the written statement it is reasonable to come into conclusion that from the very inception of the marriage ceremony the wife started disapproving the staying husband’s parents and brothers at the matrimonial home. And she also asked the husband to take a quarter at Barasat. Indian society is different from the western society. In Indian society sons usually stay with their parents and established son is also responsible to lookafter his old parents. The husband being a Class-I Government Officer was fully established and being a responsible officer he was aware of his responsibilities towards his parents. Therefore, when the wife asked him to shift to a flat at Barasat meaning thereby to get himself separated from the parents and brothers it amounts to cruelty towards the husband. It further appears on the evidence on record that the wife was rude in behaviour and used abusive language towards the husband and the members of his family and she remained confined in a bed room without taking any part in the matter of any house-hold work. It is true that it takes some time for a bride to settle down in her matrimonial home but there must be an attempt on her part to settle down. The husband also expects that his newly weded wife will behave properly with the members of his family and pay respect to his parents unless there is any extraordinary circumstances compelling the husband to expect otherwise. In the instant case there is no evidence of such extraordinary situation and circumstances. Therefore, the attitude of the wife towards the husband’s parents and the family members amounts to cruelty towards the husband. Specially, when they are living jointly under the same roof and in a same mess. In the letters written by the wife which are Exhibits 1, 1-B and 1-D she treated the husband with rude contempt and hatred. The relevant portions from those letters are quoted hereinbelow :
Exhibit 1 “I hope you are happily spending your days under the “Anchal” of your mother’s saree. If this gives you so much of pleasure there is no justification in your getting married and ruining another person’s life. Here everybody wanted to know, how many dresses did I buy at Calcutta ? My reply was, “you will be astonished to know the bank balance of my husband at this age”. When I told Aparnadi that at the time of my coming my mother-in-law had given me a pocket money of Rs. 100/- only, she expressed her doubts, as to whether you are really a Class-I Officer, because now-a-days even the “Chaprashis” give pocket money to their wives, and that too not a mere 100 rupees.
When you are yourself dependent on your parents, how will you maintain your wife ? How dare you dreamt of getting married in Bengali community ? It is a shame After completion of my B.Ed., I will get a service and send you half of my salary. My parents will never say no to it. Because we do not die for money.”
“Now we have also come to know, that earlier, after Ashirvad, your marriage has been broken. Because the bride’s house, rejected you. If we had time, we too would have rejected you. That is why, you did not give us time. Because, you definitely know, how popular you are in your community.
I am sending four churies of your mother through my sister, you will pay our Rs. 1,100/- to Santoshda. I never asked you to avoid your parents. I will not ask you to do so. But, my own position is also not negligible. On language issue, nobody shows as insanity as you do. Mind that, I will remain unchanged. You first improve yourself, to the stage of human being. Then think of improving others.
My father will never tie a “Gamcha” across his neck and set his foot at your door, taking me alongwith him. But you will definitely have to come to such humiliating position you will sent me Rs. 1,000/- per month. (Otherwise I will take the money through Court).
When you have questioned my capability and power, I will show that to you upto the last extent. Santoshda will not be able to do anything.”
Exhibit 1-B “Whether you hold high Government post or not in insignificant to me. You cannot even go to the roof with me, without your mother’s permission. You did not buy a gown of 35-40 rupees for me. I would have been happier, had I been married to a clerk instead of you. I have also seen my brothers-in-law. After staying with you, I hold opinion about you, that you are a heartless husband, who does not have slightest sympathy and courage.”
“When my jewellery is my property, why your mother bothers about it. After taking the cash-memo of my jewellery you must have already checked the weigh of it. What is the necessity of keeping the cash memo till now with you ?
I never knew of this kind of activities of a civilised family.”
“You must know that every person requires pocket money, irrespective of place of stay. Wherever I stay, (Even if I stay separately) my maintenance is your responsibility. Taking money from you is my legal right. Pocket money of Rs. 1,000/- per month is not a very big amount. I have passed Law Part-I. For 2nd and 3rd part examination, I will require Rs. 1,500/-. Send the money as quick as possible.
I am very happy here both mentally and physically. This is what, I require the most. Therefore, the question of my returning to that small and unhappy house does not arise.”
Exhibit 1-D “Received your registered letter containing false allegations. I came to know that you are a great lier, on the very day after marriage, your boudi told me that you had informed her and your brother that you had taken only 27 thousand rupees. But a draft of Rs. 57,000/-hasbeen given in the name of your father and we have noted down the number of such draft.
When we came to Ranchi after marriage, my mother had given you Rs. 1,100/- to buy my churies, but you digested the money. But I will never allow you to eat up this 57,000/- rupees.
You have again asked me to demand Rs. 43,000/- from my father. But I will never make this demand. I have requested you a number of times to give up this demand. Because after paying 57,000/- my father is not in a position to pay further 43,000/-.
It is really funny to note that a person, who cannot take me to roof, without his mother’s permission, had taken me for outing in the evenings and treated me fast food.”
“Had your mother been good, why your boudi has to live separately. Your boudi herself told me how you ill-behaved with her. The neighbours of your flat are also surprised as to why your boudi lives in a separate house at Calcutta.
When your parents had been to Malda, your maid-servant Lata has seen how I woke-up in the morning, cooked your food and send you to office in time. Can a sane person abuse anothe’s parents everyday for no reason ?
And why will the other person allow it ? I believe that you have become mentally insane.
I had written you to send Rs. 1,500/-for tuition fees and exam.fees of Law 2nd, and 3rd Part. But you did not write anything about it. You can only take money from others, but if you are to give anything, you get a heart-attack. If I want, I can in other manner squeeze money from you, but I am giving you time, so that you can change yourself.
You had written that each and every line of your letter are true and correct. Does a thief, after stealing, says that he is a thief ? You have given proof in your handwritten registered letter how great Her you are- for this, I am giving you thanks.
During my two months stay with you had given me so much of physical and mental pain, that even today, I cannot forget it. I do not have the courage to go to your house, because My Life Is Not Safe There.
I am again requesting you to give up the demand of Rs. 43,000/- and change yourself.
This is my last letter. The lady doctor has advised me to stay tension free.”
The husband in his petition for divorce in paragraph 10 stated as follows :
“That at the time of marriage the respondent’s father had sent in the name of your petitioner’s father a Bank Draft for Rs. 45,000/- only, for the purpose of enabling the newly married couple themselves to choose and purchase household furniture, since due to distance and short time, the bride’s father could not himself purchase, whatever he desired to give to the couple. But the respondent has made an attempt to falsely describe the amount as Rs. 57,000/- and to falsely describe it as dowry. These false facts were according to the respondent, circulated among outsiders. This has injured the reputation of the petitioner and his family who hold respectable position in the society.”
The wife could not prove that a draft of Rs. 57,000/- was given in the name of the husband’s father.
15. On 6.9.1995 the Trial Court on a petition under Section 27 of the Hindu Marriage Act, 1955 read with Section 151, Civil Procedure Code passed the following order “The petition under Section 27 and its objection is taken up for order. Here is an application under Section 27 of the Hindu Marriage Act, 1955 read with Section 151, Civil Procedure Code the respondent seeks to get delivery of her ornaments alleged to have been kept at the locker of the petitioner and /or his parents.
The petition is contested by the husband /petitioner by filing written objection denying all material allegations in the petition.
Heard both sides. It is not substantiated in the deposition of the DWs that the ornaments presented to her have been kept in the custody of the petitioner and/or his parents when she left for Ranchi, and therefore, the petition is without any merit. But it is specifically admitted by the petitioner as PW 1 that the Bank Draft of Rs. 45,000/- was received by them for purchasing furniture, but since the said furniture had not been purchased he is ready and willing to refund the said money. Considered the said aspect of this case, the petition is disposed of with direction to the petitioner to pay a sum of Rs. 45,000/- to the respondent forthwith.
Judgment is ready and the same is pronounced in the open Court that the marriage between the parties be dissolved.”
16. In view of the discussions made hereinabove we are of the view that the wife has, after the solemnisation of the marriage, treated the husband with cruelty.
17. The learned Advocate for the wife referred to Smt. A. Handa v. Baldev Raj, reported in AIR 1985 Delhi 76, and argued that incompatibility of temperament and defect of behaviour not sufficient to prove cruelty. We are of the opinion that this case does not help the wife, because it is not the case of mere incompatibility of temperament or defect of behaviour. The conduct of wife is grave, weighty and beyond ordinary wear and tear of married life.
18. The learned Advocate for the wife referred to Ashok Kumar Bhatnagar v. Smt. Shabnam Bhatnagar reported in AIR 1989 Delhi 121=I (1989) DMC 172, and argued that protest against claim of dowry does not amount to cruelty. In the instant case, as stated earlier, we are not dealing with the allegation of dowry or alleged protest against it. Therefore, this case also does not help the wife.
19. The learned Advocate for the wife relied upon 1988 PLJR 43=I (1988) DMC 381, J.L. Nanda v. Smt. Veena Nanda. The facts and circumstances involved in J.L. Nanda’s case (supra), are absolutely different from the facts and circumstances involved in the present case and therefore, J.L. Nanda’s case (supra), does not help the wife.
20. The learned Advocate for the wife referred to Dastane v. Dastane, (supra). In paragraph 31 of the reported decision, Supreme Court, inter alia, observed as follows:
“But under Section 10(1)(b), harm or 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. 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.”
The facts’ and circumstances of the case as discussed hereinabove and the evidence on record clearly prove that the wife has treated the husband with cruelty within the meaning of Section 13(1)(ia) of Hindu Marriage Act, 1955.
21. The learned Advocate for the wife referred to Pal Rampal v. Santosh Rampal, reported in I (1985) DMC 487. The learned Advocate for the wife argued that where the divorce is sought on the ground of cruelty the petitioner must prove 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 and this applies both the mental as well as the physical acts of cruelty. We have already held that the facts and circumstances of the present case and the evidence on record proves that the wife treated the husband with cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955. And therefore, Pal Rampal’s case (supra), does not help the wife.
22. The learned Advocate for the wife also referred to Smt. Bijoli Choudhury v. Sukomal Choudhury, . In this case a Division Bench of this High Court held that the question of mental cruelty should be answered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status of the parties, environment of the parties etc. It was held that the burden of proof was upon the husband who was the petitioner. It was further held that the Courts are reluctant to find cruelty on the evidence of the petitioner unless there is corroborative evidence to support his allegations, but corroboration is not essential, though it is in practice required unless its absence can be satisfactorily accounted for. In the instant case the father of the husband corroborated evidence of the husband. That apart the wife, in her written statement made certain allegations referred to earlier in this judgment which amount to cruelty. That apart the allegations made by the wife in her letters referred to earlier in this judgment, treated the petitioner with utmost contempt and hatred which amounts to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955.
23. The learned Advocate for the wife also referred to Shyam Lata v. Suresh Kumar. In that case it was held that the wife initiated a proceeding under Sections 107 and 151 against husband and his relatives but subsequently the proceedings were dropped for want of prosecution. Institution of the said proceeding does not amounts to cruelty justifying grant of divorce. In the instant case we made it clear earlier that we shall not take into consideration the criminal case instituted by the wife against the husband and his relative. Under these circumstances the said decision in Smt. Shyam Lata’s case (supra), does not help the wife.
24. In view of the discussions made hereinabove, we are of the opinion that the wife treated the husband with cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955. We are of the view that the husband is entitled to a decree of divorce dissolving the marriage between the husband and the wife. We affirm the judgment and decree dated 6.9.1995 and 20.9.1995 respectively passed in Mat. Suit No. 33 of 1992 by the Court of 2nd Additional District Judge at Barasat. The appeal is dismissed. However, there shall not be any order as to costs.
V.K. Gupta, J.
I agree.
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