Court: Chhattisgarh High Court
Bench: JUSTICES I.M. Quddusi & N.K. Agarwal
Rani Bai @ Shakuntla Verma Vs Chandrashekhar Verma On 8 September 2010
Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ia), 13(1)(ib) — Mental Cruelty, Desertion — Proof of — Appellant wife deserted her husband without any proper and sufficient reason — Cruelty on her part towards respondent is made out — Appellant refused to live with respondent’s mother and two sisters — Due to her misconduct marital relations of her brother and respondent’s sister broken and there was dissolution of marriage — No cordial relations between appellant and respondent — Respondent entitled to get divorce – Apart from Rs. 1000 p.m. granted by Trial Court towards maintenance of daughter, respondent shall pay Rs. 1.50 lacs to wife as permanent alimony.
JUDGEMENT
1. This appeal has been led by defendant/wife against the impugned judgment and decree dated 17.9.2009 passed by the II Addl. Principal Judge, Family Court, Durg (C.G.) whereby the application filed by the respondent/plaintiff under Section 13A of the Hindu Marriage Act has been allowed.
2. The brief facts of the case are as under:
(i) That the marriage between the appellant and respondent was solemnized on 16.6.2003 in village Bharda. The brother of appellant Bhagwati Verma has married with the sister of respondent Priti Verma on 16.6.2003 itself on Gurawat System (mutual exchange). However, the marriage between Bhagwati Verma and Priti Verma has been dissolved.
(ii) In the plaint, it has been stated that appellant and respondent are living separately for the last five years. It is alleged that appellant used to pressurize her husband (respondent) to leave his parental relations and their obligations. When her advice was not heeded, the appellant left her husband and had gone to her maternal home. The appellant incited her brother to leave his wife (Nand) who is the sister of her husband (respondent herein) and anyhow the appellant succeeded in getting her brother separated from his wife Priti Verma. Several times, the plaintiff/respondent along with elder had gone to the place of his wife, appellant herein, and tried to convince the appellant through the elders to come back and maintain marital relations with him, but the appellant has refused to go with him. On the other hand in order to harass him, she has filed application under Section 125, Cr.PC levelling allegations of abuses, beating, etc., against him. According to the plaintiff, the conduct of the defendant towards the family of plaintiff is not at all good, therefore, he prayed for dissolution of marriage.
(iii) In the written statement filed by the appellant/defendant she has not denied the fact of marriage with the respondent plaintiff and the marriage between her brother Bhagwati Verma and sister of her husband Priti Verma on Gurawat system (mutual exchange). But she denied the other allegations made in the plaint. She submitted that she never deserted her husband and the husband is not coming forward to take back her with him and the appellant is not entitled to take divorce from her. According to the appellant, in the year 2004 during holy festival when she was carrying pregnancy of 8 months, the respondent himself took her to her maternal home and left there. Since then he did not come to her. When she wants to come to her matrimonial house, her mother-in-law expressed inability for her delivery, therefore, she delivered at her maternal home on 24.5.2004. After her delivery, no body has come to see her even after her father had gone to Jamul and informed to her husband and in-laws. Later on, after her father made contacts with them, they told that they will take back her within 14-15 months but no body has come to take back her. Thereafter, after 3-4 months, when her father, brother and other caste members had gone to her in-laws place the respondent’s mother and sister denied to keep with them in the absence of respondent and even she denied to send her daughter Priti. Then they have returned. After some days, she filed complaint in Women Police Station, Durg where certain dates were fixed for appearance of her husband but he has not appeared. Then she filed complaint in community and the respondent attended the meeting of community where he told that he will not give regard to decision of community chief until and unless she withdraws her complaint in the Mahila Thana. Therefore, she has withdrawn the complaint from Mahila Thana on the advice of community people. However, even thereafter she had tried for compromise through the Community and the respondent was directed by the Community. and the respondent was directed by the Community but he denied to keep her with him. Therefore she has not deserted her husband at any point of time, but plaintiff himself has left her in her maternal home without any reason.
3. Alter hearing both the parties and considering the material on record, the learned Trial Court held that the appellant has deserted her husband without any proper and sufficient reason and the cruelty on her part towards the respondent is made out.
4. We have heard learned Counsel for the parties and have also perused the records of the Court below.
5. The respondent examined himself as A.W.1 and has also examined one Bhupendra (A.W.2) whereas the appellant has examined herself as A.W.1.
6. The respondent has stated in his examination before the Trial Court that marriage was performed between him and appellant Rani Bai and between his sister Priti Verma and brother of defendant Bhagwati Verma on Gurawat system (mutual exchange). After the marriage they started residing in their respective families, but the appellant used to force him to reside separately from his family. He has further stated that since he got compassionate appointment after death of his father, there was responsibility on him to look after his mother and two sisters. Therefore, he did not give heed to the advice of his wife and for this reason, the defendant had gone away to her maternal home in village Bharda where also she fomented her brother not to discharge the marital relations with his wife who is sister of the respondent/plaintiff. According to the respondent, the appellant tried to get rid of Priti Verma from the marital relations of her brother Bhagvati Verma and ultimately the appellant has intentionally got separated Priti Verma from her brother. The respondent has further stated that the. appellant herself called her father Dhannalal and had gone away to, her maternal home with her father. Thereafter, the respondent along with elders had gone to her maternal home and tried to convince her but she did not come back. On the other hand, her brother deserted his sister without any reason and ultimately divorced her. On this pretext; the defendant has filed application under Section 125, Cr.PC, alleging abuses and beating against the plaintiff and after 18 months of the marriage she started living continuously in her maternal home and her conduct towards the respondent and his family was not good. In such a situation, according to the respondent, it would not be possible for him to lead the marital life and to maintain conjugal life with the appellant.
7. However, the respondent in his cross-examination has stated that the appellant used to demand that wherever he resides, she wants to reside there. Even today she wants to reside with him at his working place Dondi but the respondent wants her to reside at Jamul. Therefore, the appellant says that she does not want to reside at Jamul. On a suggestion, the Plaintiff has stated that it is incorrect to say that he himself has brought his wife to her maternal home during holy festival and the plaintiff and his mother expressed inability to make arrangements for her delivery at Jamul, therefore, she has delivered at her maternal home. He has further stated in his cr6ss-examination that it is incorrect to say that her brother Bhagwati Verma and father along with some community members namely Toran Nayak, Girish Nayak and Harish, etc. came to Jamul and then he rejected to keep the appellant and her daughter with him. Although the respondent has admitted that the appellant has lodged report in Mahila Thana, Bhilai and made complaint before the Community and the chief of community has requested the respondent to keep the appellant with him, but he expressed that he was not in a position to keep her with him.
8. A.W.2 Bhupendra Verma in his deposition has stated that the appellant used to insist her husband to live separately from his parent relations and avoid their responsibilities. When her husband refused her advice, she called her father and returned with him to her maternal home. He has further stated that the appellant also prompted her brother to desert his wife Priti Verma, who is the sister of respondent and ultimately she managed to separate her brother from his wife Priti Verma. He has also stated that he tried to convince the appellant, but she did not agree. She was adamant and she had her own ideas. She persistently used to say that the respondent should reside separately, but the respondent looking to the responsibilities of his mother and two sisters, could not maintain marital relations separately, therefore; the appellant has filed application under Section 125, Cr.PC. This witness has stated in his cross-examination that meetings of the community were conducted on 5 to 6 occasions, but in the last meeting in which he attended, the marriage of appellant and respondent was dissolved in the form of society that is by caste customs.
9. On the contrary, the appellant Rani Verma has stated in her deposition that when she was carrying pregnancy of 8 months her husband himself brought her to her maternal home on the occasion of Holi festival and he assured that he will take back her after Holi but he did not come. Even after the information regarding birth of child namely Kumkum, was sent through her father who had gone to Jamul, he did not come and later on after one month the father of appellant has contacted the respondent and the respondent has told that he will come within 10-15 days and will take back her but he did not turn up. Then her father and brother along with other community members Toran Naik, Girish Naik, Harish, etc., had gone to Jamul to assign the appellant and her child Kumkum in her in-laws house. Toran has already informed about their arrival but the respondent had gone elsewhere and her mother-in-law and sister-in-law Priti Verma were there and they denied to keep her in the matrimonial home, therefore, they had gone back. After a few days, she has filed report in Mahila Thana and also filed complaint before the caste-community and the caste people tried to compromise the matter for two years, but the respondent did not come.
10. The appellant in her cross-examination has clearly stated that she does not want to reside in paternal house of the husband and she wants to reside at the working place of her husband. She has admitted in her cross-examination that her husband got compassionate appointment after death of his father and he was responsible to look after his mother who is residing in his paternal house at Jamul. She has herself admitted that the marriage between her brother Bhagwati and the sister of respondent Priti was dissolved in presence of the Community. On a suggestion being made in Para 16 of her cross-examination, that the respondent is ready to keep her at Jamul where his mother is residing, the appellant has replied that she had married, with the respondent and not with the mother of respondent.
11. After hearing both the parties and considering the material on record, the learned Trial Court held that the appellant has deserted her husband without any proper and sufficient reason and the cruelty on her part towards the respondent is made out. The Trial Court has recorded the finding that it has been proved from the version of Plaintiff and his witness Bhupendra that when she was carrying pregnancy of 8 months, her father brought her to the maternal home before Holi festival, but the fact that the information regarding her delivery and then they had gone to Jamul to assign the appellant and her child Kumkum to the respondent is not proved. It has also recorded a finding that the marriage between the brother of appellant and the sister of respondent has already been dissolved and the divorced sister of the respondent is leading the barren life in the house of the respondent and in such a situation, it cannot be imagined that there would be cordial relations between the appellant and respondent. Therefore, the Trial Court has directed for dissolution of the marriage held between the appellant and respondent and also directed the respondent/plaintiff to deposit Rs. 1,000 per month towards the maintenance of the daughter till her marriage.
12. According to Franklin Mariam Webster, ‘cruelty’ means causing pain and suffering to others. The meaning of ‘cruelty’ has been given in Black’s Law Dictionary (Eighth Edition), which reads that the intentional and malicious infliction of mental or physical suffering on a living creature esp. a human; abusive treatment; outrage. Further “Cruelty” has been classified as under:
(i) Cruelty to a child
(ii) Cruelty to animals
(iii) Extreme cruelty
(iv) Legal cruelty
(v) Mental cruelty
(vi) Physical cruelty.
“Legal cruelty” reads as under:
“Cruelty that will justify granting a divorce to the injured party; specific, conduct by one spouse that endangers the life, person, or health of the other spouse, or creates a reasonable apprehension of bodily or mental harm.”
‘Mental cruelty’’ reads as a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”
13. In Naveen Kohli v. Neelu Kohli, I (2006) DMC 489 (SC)=III (2006) SLT 43=128 (2006) DLT 360 (SC)=II (2006) CLT 100 (SC)=(2006) 4 SCC 558, disposing of the appeal, Hon’ble the Supreme Court held that cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance Each case has to be decided on its own merits. In Naveen Kohli’s case (supra), referring to the decision reported in Gannanath Pattnaik v. State of Orissa, I (2002) SLT 729=I (2002) CCR 138 (SC)=(2002) 2 SCC 619, the Supreme Court , quoted the observations vide Para 54 regarding cruelty as under:
“7. The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. ‘Cruelty’ for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.”
In Naveen Kohli’s case (AIR 2006 SC 1675) (supra), the Supreme Court has further referred to the decision of a three-Judge Bench reported in A. Jayachandra v. Annel Kaur, I (2005) DMC 111 (SC)=VII (2004) SLT 581=(2005) 2 SCC 22, and quoted the observations vide para 63 that:
“10. The expression ‘cruelty’ has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, included mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same lime be direct evidence. In cases where there is no direct evidence, the Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
Emphasis supplied)
11. The expression ‘Cruelty’ 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. Cruelty is a course or 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 in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the inquiry must begin as to the nature of 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. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or 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. [see Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105].
(Emphasis added)
12. To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner-spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life.’ The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and torture may well constitute within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.”
14. On perusal of the evidence of both the parties, it would clearly show that the respondent got compassionate appointment after death of his father and he is responsible to look after his mother and two sisters therefore when he refused the advice of his wife to live separately and avoid their responsibilities, she (appellant) had gone away to her maternal home at village Bharda with her father where she fomented troubles in the marital relations of her brother Bhagwati Verma and sister of the respondent Priti Verma and ultimately the marriage between Bhagwati Verma and Priti Verma has been dissolved and the divorced sister of the respondent is leading a barren life in the house of the respondent at Jamul. The appellant has filed application under Section 125 of the Code of Civil Procedure to harass her husband alleging certain false allegations. She has further lodged report in Mahila Thana, Bhilai and also filed complaint before the Community. Even in her cross-examination vide Para 16 on a suggestion that the respondent is ready to keep her at Jamul where his mother is residing, the appellant has adamantly replied that she had married with the respondent and not with the mother of respondent, hence she does not reside at Jamul. Therefore the learned Trial Court held that it is made clear that she was adamant not to reside at Jamul. Considering the totality of the facts and circumstances of the case and in view of the decisions of the Supreme Court referred to above, we are of the opinion that mental cruelty has been made out due to the obstinate conduct of the appellant, therefore, the respondent is entitled to get decree of divorce.
15. In view of what has been stated above, we are not inclined to interfere with the findings of the Trial Court. However, we direct that apart from Rs. 1,000 per month granted by the Trial Court towards the maintenance of the daughter, the respondent shall pay Rs. 1,50,000 to the wife as permanent alimony. Subject to this modification, rest of the judgment and decree dated 17.9.2009 shall remain intact.
16. In the result, appeal is allowed in part to the above extent. No orders as to cost.
Appeal partly allowed.
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