Judgment - Divorce

Court: Himachal Pradesh High Court

Bench: JUSTICE Dev Darshan Sud

Shashi Kumar Vs. Neelam On 8 July 2010

Law Point:
Husband was denied sexual access, subjected to abuse, locked out of his room, kicked out of bed, his mother was abused and respondent was not performing any household work — This stands established by evidence on record — Marriage between parties is dissolved by decree of divorce.

JUDGEMENT

1. This appeal has been filed by the husband against the judgment and decree of the learned District Judge dismissing his petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’), seeking dissolution of the marriage on the grounds of cruelty.

2. The appellant, who is serving in the C.R.P.F. pleaded that the respondent-wife has subjected him to physical and mental cruelty. The acts attributed to her were: (a) that she did not permit the appellant to consummate the marriage and any attempt made by him was resisted by her violently and ended up with her abusing him; (b) that she abused, insulted and humiliated him and his family members without any provocation. In these circumstances, the appellant pleaded that he was entitled to a decree for dissolution of the marriage.

3. The appellant pleads that the marriage between the parties was solemnized on 5.3.2002 at village Ichhi, Tahsil and District Kangra. After the marriage, the respondent started behaving in a manner unbecoming of a wife and she refused to discharge her conjugal duties. She would not allow him to touch her and any attempt(s) on his part are resisted violently. The parties did not cohabit as husband and wife and despite best attempt of the appellant she did not live with him as his wife. He pleads that after his marriage, when he tried to consummate the marriage, he was told by the respondent that the doctor had advised her not to cohabit for at least three months as she was not medically fit. After two months of the marriage, in June, 2002, the appellant came on five days’ leave from Gandhi Nagar, Gujarat, where he was serving and took the respondent along with him to his place of posting. But, there also she did not mend her ways. When he tried to approach her, she warned him that in case he touched her, she would raise a hue and cry and will commit suicide, and spare no effort to have the appellant jailed. He was not allowed to share the common bed and at times she bolted the door from inside and the appellant had to sleep outside the room. On one occasion she even kicked him out of the bed. When he brought her back from Gandhi Nagar, Gujarat, they reached at Kangra Railway Station, the respondent compelled the appellant not to go to their matrimonial home but insisted to go to Ichhi, that is, the permanent residence of the in-laws of appellant. They stayed there for five days and during this period also they were sleeping in different rooms. During December, 2002 when the appellant came to his house on five days’ casual leave, he again asked the respondent to share a common room and bed with him, but this attempt was also resisted by her when she created a scene in the middle of the night and asked him to sleep with his mother. In January, 2003, the appellant pleads that he came home on one month’s leave, but again the same behaviour was repeated. On one occasion, when the family members of the appellant tried to intervene, she raised a hue and cry, abused the appellant and his mother in the filthiest language and pushed his mother, as a result of which she fell down. The respondent would never assist in any household works, chores, cooked food for the family and abused him by calling him a “Pulsia-Gadha” (used as a pejorative) who is unfit even to tend to her footwear. This is the gist of the pleadings. These allegations have been denied by the respondent.

4. In order to prove his case, the appellant appeared as P.W. 1, his mother Smt. Krishna Devi as P.W. 2, whose evidence, according to the learned Counsel appearing for the appellant, are supported by P.W. 3 Shridhar, P.W. 4 Ravi Dass and P.W. 5 Suman Kumar.

5. The respondent appeared as her own witness and Smt. Champa Devi, mother of the respondent, appeared as P.W. 2. Adverting to the evidence on record, the learned District Judge holds that the statement of the appellant is unreliable and improbable. The learned Court while referring to some portion of the statement observes that it was not possible for the respondent to have kicked the appellant as it is his admitted case that the appellant is stronger than her. The learned Court also holds that his statement is not corroborated by any complaint, etc. being made by him to his superior officers or any other person/friend complaining about the behaviour of the respondent. On the evidence of P.W. 2 Smt. Krishna Devi the learned Court holds that testimony of this witness, being the mother of the appellant, is unreliable. No reliance can be placed on the statement of P.W. 3 Shreedhar, P.W. 4 Ravi Dass and P.W. 5 Suman Kumar as they are not worthy of credence.

6. Learned Counsel appearing for the appellant has taken me through the evidence of the appellant. He states in his evidence that after the marriage took place on 5.3.2002, the respondent never allowed the appellant to live as husband and wife with her. After he had come home on leave the respondent resisted him and did not allow him to consummate the marriage. He took her with him to Gandhi Nagar, Gujarat in 2002, but again the same story was repeated. She went to the extent of saying and threatened the appellant that in case he touched her, she would raised a hue and cry and would ensure that he goes to jail. When he would return from duty at night, she would bolt the bedroom, from inside and would not permit the appellant to enter. On one occasion, when he tried to sleep with her, she kicked him out of the bed. He says that when he brought her to Kangra and they alighted at Railway Station at Kangra she insisted that they should go to the house of her parents to which suggestion he agreed but he was made to sleep in different room in his in-laws’ house. The respondent used to abuse the appellant as also his family members in the filthiest language.

7. In December, 2002, when he came home and tried to share a common bed with her, she told him that he should go and sleep with his mother and started abusing him. Next day, she left for his in-laws’ house. In January, 2003, she repeated the same behaviour when he attempted to consummate the marriage. The respondent started abusing him and created scene which attracted P.W. 3 Shreedhar to his house. He says that when his mother intervened in this occasion, she abused her, abused the appellant as “Gadha” (donkey). She even assaulted P.W. 2 Smt. Krishna Devi, mother of the appellant. When he went to his in-laws, he was informed by his mother-in-law RW-2 Smt. Champa Devi that doctor had advised the respondent not to have any sexual intercourse/physical relations with the appellant for eight years. Then again, in June, 2003 when he had come on medical leave, in the presence of Suman and other persons, she abused that the appellant is a “Pulsia-Gadha” (donkey-policewala used in the abusive sense) who is not fit to lift/tend to the footwear of the respondent. He also states that she would not do any household work and it was always his mother P.W. 2 Smt. Krishna Devi who cooked food for the family. He has been subjected to lengthy cross-examination but nothing material has come out, rather on a suggestion that they were sleeping in same room and, therefore, the marriage should have been consummated, the appellant has replied that they were sleeping on different cots. To another question as to where the appellant slept when he was turned out of the room, when they were in Gandhi Nagar where he was posted, he replied that the respondent never allowed him to sleep with her. Sometimes slept on the floor and sometimes outside the room. He has denied the suggestion that he was not kicked out of the bed by the respondent.

8. P.W. 2, Smt. Krishna Devi, says that right from the time when the appellant was married to the respondent, his wife did not permit him to make any relation with her. She did not tolerate any act made by the appellant for consummating the marriage. She corroborates the fact that the respondent was taken away by the appellant to Gujarat but they again came back and the appellant disclosed that at Gujarat also the respondent would not consummate the marriage. After he came home from Gujarat, again the appellant tried to consummate the marriage but the respondent started raising hue and cry whereupon people from the neighbourhood gathered including P.W. 3, Shreedhar gathered there. When she tried to intervene she was pushed aside by the respondent who called the appellant “Pulsia-Gadha”. She also disclosed that she would reprimand him by telling him to shut up and calling him a bloody fool. Nothing material has been elicited in her cross-examination. Rather this witness has denied all the suggestions put to her that none of the incidents has occurred. P.W. 3, Shreedhar states that he knows the parties. The appellant is his nephew. He says about 2½ years prior to the date when his evidence was recorded, at around 12.30 midnight, he was woken up by his children and told him that sounds of loud quarrelling, etc. were coming from the house of the appellant. He reached there and asked P.W. 2. Smt. Krishna Devi, as to what was the reason. She informed him that the respondent does not have any relationship of husband and wife with the appellant and does not allow him to live as such and abuses everybody by hurling abuses at them (Maa behno ki galian deti hai). He saw the respondent pushing P.W. 2. Smt. Krishna Devi, and abusing her in the filthiest language when she tried to intervene in the matter and told the respondent that she should behave properly. There is nothing in his cross-examination which would take away the veracity of the testimony. P.W. 4. Ravi Dass, says in his evidence that he had accompanied the appellant to the house of his in-laws where R.W. 2, Smt. Champa Devi, who informed the appellant that the doctor had not advised her daughter not to bear a child for eight years. P.W. 5, Suman Kumar. says that when the appellant had come on medical leave in June, she abused the appellant by calling him “Pagal Pulsia” (mad policeman). This is the entirety of the evidence of the appellant.

9. Respondent has appeared as R.W. 1 and stated that she never resisted the appellant and nor did any of the incidents as pleaded occur. She says in her examination-in-chief that “Mujhe is petition ke summons mere sasural mein mile the” (I was served in this case at my in-laws house) and that the petition for divorce has been instituted for collateral purposes i.e. to get rid of the respondent so that the appellant could get married somewhere else. The pleading in defence is to the effect that the appellant openly proclaims that he is going to perform a second marriage after getting rid of the respondent. In cross-examination, she has denied the suggestion that she was responsible for the acts of cruelty as alleged by the appellant. R.W. 2. Smt. Champa Devi, denies the suggestion that the marriage is not consummated and that the appellant and the respondent did not live as husband and wife.

10. Taking up the evidence of respondent R.W. 1 first, her statement that she was served at house of her in-laws is not correct. The summons on the record show that the first notice was issued to her returnable for 10.6.2004 and there is a report of the Process Server that she stays at Rajhana which is the house of her in-laws. Second summons for 20.7.2004 have been received by her at the address of her parents. I am only noticing this fact, for the reasons that it was urged by learned Counsel appearing for the respondent that the fact that she was served with the summons in the house of her in-laws is a circumstance that there has been a conspiracy to wrongfully keeping her away from the matrimonial home. Although this would not be material for the decision of this case as the process server has not been examined in this case and the summons cannot be treated as being read in evidence. The allegation of cruelty will be judged aliunde of this fact.

11. In a case where the allegation is that the marriage has not been consummated, it is the evidence of the husband and wife which is to be considered. Of course there can be medical evidence also which can be led to corroborate this fact, but then the appellant cannot force the opposite side to undergo a medical examination which might substantiate the allegations made by him. In the present case, I find that the appellant has described the entire sequence in graphic detail. The observations made by the learned Trial Court while considering the evidence that this evidence cannot be relied upon because it is inherently full of improbabilities cannot be accepted. How and under what circumstances the Court inserts conjectures for analyzing the evidence of the appellant, is not clear. Surely the rules for appreciation of evidence are by now well established. The Court forgets that in cross-examination the evidence of the appellant is only buttressed and not contradicted by his examination-in-chief. Not only does the appellant state about non-access to the respondent for which she was responsible but also supplies those parts of the details of their living in the common room, about the appellant being made to sleep on the floor or turned out of the house, etc. The Court observes/holds that this cannot be believed because the appellant did not make any complaint to his superior officers. I do find this line of reasoning strange. Nobody in his right senses would create a scene before his superior officers and become the laughing stocks of the entire organization and be labelled as a weakling. The evidence of P.W. 2, Smt. Krishna Devi and P.W. 3, Shreedhar establishes that the appellant had in fact informed his mother who was also a witness to the abuses/insults being heaped up on the appellant and she herself was on the receiving end of abuses, assaults, vituperation which facts stand corroborated by P.W. 3, Shreedhar, who has been a witness to the midnight episode when there was fracas in the house of the appellant and P.W. 2 Smt. Krishna Devi was assaulted and abused by the respondent. The statement of P.W. 4, Ravi Dass corroborates the allegations of the appellant that the respondent had been told, and which fact was affirmed by the mother-in-law, that she has been advised by a doctor not to bear children for eight years. The abuses hurled at the appellant and his mother are corroborated by P.W. 3 Shreedhar and P.W. 5 Suman Kumar. They state in no uncertain terms that filthy language is used to abuse the appellant and his mother and that the respondent had gone to the extent of using abuses in the filthiest language i.e. (Maa behan ki galian). The fact that the appellant has been called as “Pulsia-Gadha”, incapable of even tending the footwear of the appellant is corroborated by P.W. 2 Smt. Krishna Devi and P.W. 5 Suman Kumar.

12. In these circumstances, there can be no doubt that the appellant has been subjected to mental cruelty by the respondent. There is also no contradiction in the evidence of the appellant and his mother P.W. 2 that the respondent, besides not discharging the duties as a wife and also did not perform any household work, etc. When considered in its totality, the evidence clearly establishes the fact that the appellant was subjected to mental cruelty of the extreme degree. The statement made by the respondent that she did not stop the appellant from consummating the marriage cannot be relied upon as on the question of service of the respondent, the summons did not support her statement. On the other aspect that she was so dutiful and had allowed the appellant to consummate the marriage, all that is required to be said is that the evidence of doctor with medical examination of the respondent could have been produced by the respondent which would have set at rest the entire controversy. Her allegation in the petition that the appellant wanted to marry again is unsubstantiated and not proved as a fact. A submission is made on behalf of the learned Counsel appearing for the respondent that the evidence which has been led on record cannot be looked into as it is against the pleadings on record. He submits that the evidence is at total variance with the pleadings. This submission cannot be accepted. It is well settled that pleadings are to be considered liberally and that the evidence does not have to be pleaded. The main stay of the allegation is that the appellant was denied sexual access, subjected to abuse, locked out of his room, kicked out of the bed; his mother was abused and pushed about as also the fact that the respondent was not performing any household work/chores stand established by the evidence on record. Section 13(l)(ia) of the Act provides:

“13. Divorce—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(i) …………………………………

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or……………”

13. In Samar Ghosh v. Jaya Ghosh, I (2007) DMC 597 (SC)=IV (2007) SLT 76=II (2007) CLT 72 (SC)=(2007) 4 SCC 511, lays down the principles applicable, the Supreme Court holds:

“98. On a proper analysis and scrutiny of the judgments of the Supreme Court and other Courts, 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 should even attempt to give a comprehensive definition of mental cruelty.

99. The 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 another 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 the 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. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice-versa. There can never by 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 into consideration.

101. No uniform standard can ever be laid down for guidance, yet it is deemed 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.

14. Further the Court laid down certain acts which would constitute mental cruelty which are:

“(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 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. Considering the totality of the facts and circumstances of the case, the evidence on record brings the case of the petitioner squarely within Section 12 of the Act in addition to Sub-sections (v) and (vii) of the ratio of this case. Learned Counsel below while approaching the evidence has not at all comprehended the true meaning of cruelty. The wife has no justifiable grounds for behaving in the manner in which she has done. Corroboration from superiors/other independent witnesses cannot be insisted upon in the situation. A man when has been insulted, humiliated and denied sexual access cannot be expected to make his predicament public. Unfounded suspicion, abuse, neglect by the respondent and unjustifiable withdrawal from the matrimonial company and denying sexual access to the appellant constitutes cruelty in terms of Clauses (i), (ii), (iv), (v), (xii) and (xiii) of Samar Ghosh’s case.

16. This appeal is accordingly allowed with costs. The marriage between the parties is dissolved by a decree of divorce. Let a decree in these terms be drawn up.

CMP No. 441 of 2010.

17. Learned Counsel for the appellant submits that it is because of the refusal of the wife to furnish her bank account number that the amount could not be remitted to her. Let such bank account number of the respondent be furnished to the learned Counsel for the petitioner within a period of two weeks from today, whereafter the appellant shall pay the entire maintenance pendente lite.

Appeal allowed.

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