M.C. Garg, J.
1. This order shall dispose of this first appeal preferred by the appellant-Mamta Bhardwaj (wife) against her husband-Madhusudan Bhardwaj assailing the order passed by the Family Court under Section 19(1) of the Family Court Act whereby, the Principal Judge of the Family Court, Gwalior in Case No.117A/07 under Hindu Marriage Act filed by the respondent-Madhusudan Bhardwaj (hereinafter referred to as the "husband"), seeking dissolution of his marriage with the appellant decreed the same in favour of the respondent-husband and passed a decree dated 28th June 2013 dissolving the marriage between the parties by means of a decree of divorce.
2. According to the appellant, the judgment of the lower Court is not sustainable for the reasons that the appellant has failed to prove allegations on merit. His witnesses have not supported his case. There are number of contradictions in their statement. The main allegation made against his sister having illicit relationship with the respondent has also not been proved. It is further submitted, that it has been brought on record by the appellant in her evidence that it was the respondent and his family members who were treating the appellant with cruelty and in fact the case under Section 498-A of IPC was also registered against him because there was substance in the allegations made against the respondent and his family members. It is further submitted that even the order of maintenance passed under Section 125 of Cr.P.C. has not been complied with.
3. According to her the main controversy arose between the parties only because she could not give birth to a child. It is however the matter on record that the first petition for divorce was filed by the respondent against the appellant just after six months of the marriage, of course it was dismissed as pre-mature. The allegations of the respondent have been taken note of by the lower Court in the impugned judgment in para 2 as follows:-
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4. There is no dispute that the parties were married to each other in accordance with the provision of the Hindu Marriage Act.
5. In the written statement cum counter claim the appellant also claimed the decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act. It was her case that just after one month of her marriage the respondent and his family had started raising demand of dowry. He treated the appellant with cruelty on account of demand of Rs.5 Lacs and a Car. In fact on 10.10.2006 the day of Karvachauth, the respondent and his mother and sister beat the appellant. They were not even giving food to her and keep the food articles under lock and similar treatment was given to her by his mother and sister because of which her backbone was fractured. In this regard she got herself treated on 28.12.2006. It is submitted that her relatives have been trying to persuade the respondent to take the appellant back but he always wanted his demands of dowry to be met as a precondition for the respondent in joining his company. It is submitted that the appellant even made a complaint in this regard at Mahila Thana in March 2007 and on account of that a case under Section 498-A of IPC and under Section 3 and 4 of the Dowry Prohibition Act was also registered. She also filed a case under Section 125 of Cr.P.C. wherein, the respondent refused to grant maintenance to her.
6. The lower Court has also noticed the facts of the case of the appellant in para 4 of the judgment as follows:-
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7. On the pleadings of the parties, the trial Court framed the following issues:-
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8. To prove his case the respondent examined himself, his sister Menakshi Choubey (PW/2) and his friend Shailendra who appeared as PW/3. He also brought on record Ex-P/1 to Ex-P/33 and relied upon the contents of those documents in support of his case. On the other hand the appellant examined only herself besides relying upon the document Ex-D/1 to Ex-D/49.
9. Some undisputed facts which have been taken into notice by the lower Court reproduced in para 10 reads as under:-
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10. It may be observed here that the appellant has not engaged any counsel and has argued herself. She has also filed written arguments. She is M.A. LL.B. and offer of this Court to engage a counsel through legal Aid was declined. Efforts for mediation between the parties were also not successful. It shows that the appellant is an educated lady and is fully aware of her obligations in law.
11. Basic allegations of the respondent was that the appellant and her family members had been pressurizing the respondent to send the mother and sister-Menakshi from the matrimonial house to some other property by taking it on rent and transfer the property in which the parties had been residing in the name of the appellant. To pressurize the respondent to meet her aforesaid demand she had been treating the respondent his mother and his sister with cruelty. She had even abusing the respondent by using word "LANGUAGE". Specific allegations have also been made by the respondent in support of his case by narrating incident of 19.12.06 by alleging that on that day at about 7.00 PM, the appellant, her brother and sister came to his house and treated the respondent and his family members with cruelty in presence of his friend Shailendra who appeared as PW/3. About that incident, it was alleged that on that day the family members of the appellant and appellant herself wanted the respondent to execute papers for transfer of matrimonial house in her name and on his refusal she abused the respondent and his sister. She even made allegations that the respondent was having illicit relationship with his sister. Incident of 27.12.2006 is also referred to on which day threats were given to the respondent that if the house was not mutated within seven days in the name of the appellant, a false complaint will be lodged against the respondent and his family members.
12. On the other hand, according to the appellant in Ex-P/3 report lodged by the respondent dated 27.12.06 there was no mention about the allegations of illicit relationship between the respondent and his sister and this fact has been admitted by him in para 19 of cross-examination. Similarly in Ex-P/5 notice sent by the respondent through his advocate, again there is no mention about any allegation having made by the appellant about illicit relationship between the respondent and his sister.
13. Allegations have been scrutinized by the lower Court in the light of the statement made by the parties as also in their cross- examination and the contents of documents Ex.P/3 and Ex.P-5 in paragraph 13 and 14 of the judgment as under:-
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14. Reply given to Ex-P/5 by the appellant vide Ex-P/11 reflects upon her intention and give tacit support to her allegations about illicit relationship of respondent with his sister. The contents of the reply have been taken note by the lower Court in para 15 of the judgment which is reproduced here as under:-
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15. From the aforesaid the lower Court has taken a view that the appellant was making false allegations against the sister of the respondent and was alleging that she was a person of shady character and in fact wanted to oust her from matrimonial home. In this regard the trial Court has even noted cross-examination of the respondent in para 30 of the judgment which is reproduced in para 18:-
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16. The aforesaid explanation given by the respondent about not mentioning the allegations of the appellant against his sister are justifiable and would not contradict his allegations against his sister which were made by the appellant.
17. Para 22 of the judgment is also relevant which deals about the allegations of illicit relationship between the respondent and her sister. Para 22 reads as under:-
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18. In the light of the aforesaid conclusion drawn by the lower Court, it was held that the conduct of the appellant was such, which caused mental cruelty upon the respondent of such kind which made it impossible for respondent to stay with appellant as her husband. The lower Court was satisfied in coming to the conclusion that besides the allegation made by the respondent against the appellant about specific acts of cruelty, her allegations against the sister of the respondent and suggestive averments in her reply to the notice given by the respondent to the appellant were the acts of mental cruelty. Paragraph 15 and 16 of the judgment in this regard is clear which are reproduced hereunder:-
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19. I have gone through the judgment of the lower Court and also gone into the written statement filed on behalf of the appellant.
Section 13 of the Hindu Marriage Act reads as under:-
13. Divorce. (1) Any marriage solemnised, 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) x x x [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or] [(ib) to (vii) x x x Explanation .- x x x
20. The word 'cruelty' has not been defined in the Hindu Marriage Act. To constitute cruelty the conduct complained should be 'grave and weighty' so as to make cohabitation virtually unendurable. 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 it is a case of accusations and allegations, regard must also be had to the context in which they were made.
21. In the celebrated book of D. Tolstoy "The Law and Practice of Divorce and Matrimonial Causes" (Sixth Edition, p. 61) defined cruelty in these words:
"Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such a 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."
22. The Shorter Oxford Dictionary defines "cruelty" as "the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness".
23. The term "mental cruelty" has been defined in Black's Law Dictionary [8th Edition, 2004] as under:
"Mental Cruelty - 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."
24. The concept of cruelty has been summarized in Halsbury's Laws of England [Vol.13, 4th Edition, Para 1269] as under:
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits."
25. In 24 American Jurisprudence 2d, the term "mental cruelty" has been defined as under:
"Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse."
26. In Dr. N.G. Dastane v. S. Dastane, (supra), the Apex Court has observed as under;
"...whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the Respondent".
27. In the case of Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, the Apex Court has observed as under;
"Section 13(1)(ia) uses the word "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 behavior. 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."
The Court further observed;
"The context and the set up in which the word "cruelty" has been used in the Section seems to us, that intention is not a necessary element in cruelty. That the word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, that act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment."
28. In the case of V. Bhagat v. D. Bhagat, (Supra), the Apex Court has observed as under:
"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 it is a case of accusations and allegations, regard must also be had to the context in which they were made."
29. Again in Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591, the Apex Court has observed as under;
"Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other."
30. In Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582, the Apex Court has laid down as to what constitute cruelty;
"Cruelty for the purpose of Section13(1)(ia) is to be taken as a behavior by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
31. The Apex Court in Vinita Saxena v. Pankaj Pandit, AIR 2006 SC 1662, has observed as under;
"As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.
If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer."
32. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior 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. 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.
33. It may be observed here that in matrimonial life, the possibility of such situation that the sister living in parents' house after her marriage is not an unusual situation. It quite often happen if her relationship with her husband is not very good and she did not feel comfortable then only option for her to live with her parents. Even if such living by the married daughter is for a long period, this cannot be a reason for the sister-in-law to create a situation where relationship between the parties comes to such a situation that they are unable to live together which appears to be a situation created by the appellant and has given reason for filing of this divorce petition. She went to the extent of making allegation against the sister of the husband calling her a person of shady character.
34. Reference can also be made to the judgment delivered in the case of Nemai Kumar Ghosh vs. Smt. Mita Ghosh reported in AIR 1986 Calcutta 150. Para 8 of the aforesaid judgment is relevant which is reproduced here as under:-
"On a conspectus of all these decisions cited hereinbefore, it is now well settled that if any imputations against the character of any spouse is alleged either by the wife or by the husband without any foundation and the same is based on mere suspicion, even in such cases such baseless allegations of illicit relationship amount to mental cruelty and it will be a valid ground for passing a decree of divorce under the provisions of S.13(ia) of the Hindu Marriage Act. We have already held hereinbefore on a consideration of the evidence on record that the respondent wife, since after her marriage with the appellant, became suspicious about his character and used to doubt that the appellant was in illicit connection with his own sister-in-law (elder brother's wife). This has caused serious mental pain and agony to the appellant inasmuch as it has been stated by the appellant and also pleaded in his petition that he held his sister-in-law in high esteem like his mother and it was under her care and affection that he was brought up and it was she and his elder brother who arranged his marriage with the respondent. In such circumstances, we are constrained to hold, considering the social status of the appellant who is now working as an officer, i.e. Branch Manager of the United Commercial Bank, that this behaviour on the part of the respondent amounted to mental cruelty and it gives sufficient reasons for the appellant to think that it would not be safe for him to live with the respondent. Furthermore, it appears that the respondent after their separation since Sept. 1977, not only has no mind to patch up the differences and to return to the matrimonial home for the simple reason that she has not come up before this Court to contest the appeal even though this Court directed the appellant to serve notice of the appeal by registered post and file affidavit-of-service. Affidavit-of-service has been filed by the appellant stating that the Court's order has been complied with. But in spite of such service of notice, the respondent did not think it fit to contest the appeal. This bespeaks the mind of the respondent that she is not willing to go back to the matrimonial home even if this action becomes unsuccessful. In these circumstances, we are constrained to hold that this is a fit case where for ends of justice the application for divorce should be allowed. We are fortified by our above findings with the most pertinent observations of the Supreme Court made in the case of Sm. Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 at p. 98 : (AIR 1984 SC 1562 at p. 1566), paragraph 9 where their Lordships have held, "Furthermore we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife; if such is the situation it is better to close the chapter."
35. In recent judgment delivered by the Apex Court in the case of K. Srinivas Rao vs. D.A. Deepa reported in (2013) 5 SCC 226 in the following words:-
"27.We need to now see the effect of the above events. In our opinion, the first instance of mental cruelty is seen in the scurrilous, vulgar and defamatory statement made by the respondent-wife in her complaint dated 4/10/1999 addressed to the Superintendent of Police, Women Protection Cell. The statement that the mother of the appellant-husband asked her to sleep with his father is bound to anger him. It is his case that this humiliation of his parents caused great anguish to him. He and his family were traumatized by the false and indecent statement made in the complaint. His grievance appears to us to be justified. This complaint is a part of the record. It is a part of the pleadings. That this statement is false is evident from the evidence of the mother of the respondent-wife, which we have already quoted. This statement cannot be explained away by stating that it was made because the respondent- wife was anxious to go back to the appellant-husband. This is not the way to win the husband back. It is well settled that such statements cause mental cruelty. By sending this complaint the respondent-wife has caused mental cruelty to the appellant- husband.
36. Besides the specific act of mental cruelty making false allegations against the sister of the respondent, it is also matter on record that the appellant filed various such complaint under Section 498-A of IPC under Domestic Violence Act. In those proceedings, the appellant even opposed the bail application went to the extent of filing revisions against the grant of bail to the respondent and his family members. Such conduct on the part of the appellant further constitute mental cruelty.
37. Just to appreciate as to what may constitute mental cruelty one may take note of the judgment of the Apex Court delivered in the case of Malathi Ravi, M.D. vs. B.V. Ravi, M.D. Reported in (2014) 7 SCC 640, wherein the Apex Court approvingly brought earlier judgment delivered on the subject in the case of Samar Ghosh vs. Jaya Ghosh reported in 2007 4 SCC 511 wherein some illustrative cases of mental cruelty were mentioned. The aforesaid discussion appears in para 30 of this judgment in the following words:-
"30. In Samar Ghosh vs. Jaya Ghosh this Court has given certain illustrative examples wherefrom inference of mental cruelty can be drawn. The Court itself has observed that they are illustrative and not exhaustive. We think it appropriate to reproduce some of the illustrations: (SCC pp. 546-47, para 101) "(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.
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(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.
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(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.
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(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.
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(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."
38. Para 32 and 33 of the same judgment are also relevant which are reproduced here as under:-
32. In Vishwanath Agrawal v. Sarla Vishwanath Agrawal, while dealing with mental cruelty, it has been opined thus:
"22. The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status."
33. In the said case, analysing the subsequent events and the conduct of the wife, who was responsible for publication in a newspaper certain humiliating aspects about the husband, the Court held as follows:
"54...In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make it graphically clear that the respondent wife had really humiliated him and caused mental cruelty. Her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. She had publicised in the newspapers that he was a womaniser and a drunkard. She has made wild allegations about his character. She had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious."
39. In view of the aforesaid, I do not find any infirmity in the conclusion drawn by the lower Court holding that the appellant was guilty of inflicting the cruelty upon the husband including mental cruelty of the worst kind. In such situation, the lower Court was justified in dissolving the marriage between the parties by decree of divorce under Section 13 (1) (ia) of the Hindu Marriage Act.
40. In such circumstances asking the respondent-husband to live with the appellant-wife in the matrimonial house as husband and wife by passing a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act as prayed for by the appellant in the counter claim also, was rightly refused.
41. In view of the aforesaid, we find that the judgment delivered by the lower Court does not suffer from any infirmity. Accordingly, the appeal filed by the appellant is hereby dismissed.