Judgment:
B.V. Nagarathna, J.
1. This appeal is filed by the husband who was the petitioner in M.C. No. 110/2001 by challenging the rejection of his petition by judgment and decree, dt. 16.12.2005 passed by the Pit Judge, Family Court at Bangalore.
2. The respondent herein had also tiled M.C. No. 1218/2003 under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights, The said petition was also rejected by the said common order, dt. 16.12.2005 against which she preferred M.F.A. No. 5565/2008.
3. This appeal arises on account of the appellant herein being aggrieved by the dismissal of his petition under Section 13(1)(a) of the Hindu Marriage Act, seeking the relief of divorce on the ground of cruelty. According to the appellant, he was married to the respondent on 26.08.1998 as per the Hindu customs and rites at Bangalore and that after the marriage, the relationship between the parties were cordial and harmonious for a period of 1 1/2 years. That out of their wed-lock a child, by name, Aishwarya was born on 22.11.1999 and after the naming ceremony held on 11.06.2000, the appellant took the respondent alongwith the child to his house. That within a short period, the respondent fell ill and she was diagnosed as suffering from Typhoid and since the respondent's father asked her to return to his house, the respondent insisted that she and the child be taken to her parents' house and as per her wish, the respondent left for her parents' house on 27.07.2000. After two days, the appellant went to the residence of the respondent's parents and asked her to return to the matrimonial home. The respondent is said to have made baseless allegations against the appellant's parents and refused to return. In the above circumstances, the appellant brought his parents to the respondent's parents house with a view to pacify the respondent but according to the appellant, the parents and brothers of the respondent assaulted the appellant and his parents but despite that the respondent's parents lodged a false complaint against the appellant and his parents before the J.C. Nagar Police Station. Thereafter the appellant was taken into custody find released on bail but the respondent with an intention to harass the appellant and his parents lodged one more false complaint under Section 498A IPC before the Indiranagar Police Station on the ground that the appellant and his parents had demanded dowry and were harassing her with an ulterior motive and seeking more dowry. Despite these happenings, the appellant was interested in living with the respondent and the child and he made several attempts to get them back to the matrimonial home and thereafter get a legal notice, dt.04.10.2000 issued to the respondent. But in spite of service of the said notice the respondent did not return to the marital been but got issued a reply making baseless allegations against the appellant. That since the respondent has been in her parents' house from 27.07.2000, a petition was filed for dissolving the marriage on account of the cruelty on the part of the respondent.
4. After service of notice from the Trial Court the respondent herein filed her statement of objections by admitting her marriage with the appellant but by denying that the relationship between the parties are very cordial. According to the respondent when she fell ill, as per the desire of the appellant and his parents the respondent left her in her parents house and the appellant advised her to stay there for a week and assured that he would return to take her back alongwith the child. According to the respondent, the appellant along with his parents and certain anti-social elements came to the respondent's house and threatened her and demanded Rs. 50,000/- to be paid and that a complaint was lodged by the respondent before the J.C. Nagar Police Station on account of the Illegal threats made by the appellant and his parents alongwith their henchmen by demanding payment of dowry. That the respondent was interested to return to the matrimonial home along with the child but the appellant and his parents created trouble for wrongful gain and that the complaint under Section 498A of IPC before the Indiranagar Police Station was made by the respondent and her parents on account of the threats and illegal acts of the appellant, his parents and henchmen. According to the respondent, the parents of the appellant were treating her well but the appellant harassed her. She is ready and willing to return to the marital home but the younger sister of the appellant is interested in breaking the bondage of relationship of husband and wife between the parties and that the parents of the appellant ate& changed their stand due to the pressure of their daughter. She has stated that she has in fact refused to join the appellant at the marital home alongwith with the child and that there Is no substance in the petition filed by the appellant for divorce.
5. In support of his case, the appellant examined himself as PW-1 and his father as PW-2 and got marked Ex.P.1 to 42 while the respondent examined herself as RW-1 and two other witnesses as RW-2 and RW-3. On the basis of the above material, the Trial Court framed the following points for its consideration:
1. Whether the petitioner/husband has proved that the respondent/wife after the solemnization of her marriage with him has treated him with cruelty of such a nature which warrants for the relief of divorce sought by him?
2. Whether the respondent/wife has proved that the petitioner husband has withdrawn from her society without any justifiable cause and reason and thereby she is entitled for the relief of restitution of conjugal rights sought by her?
3. What order?
and answered point Nos. 1 and 2 in the negative and rejected both the petitions filed by the appellant herein as well as the respondent herein. Being aggrieved by the rejection of his petition for the relief of divorce, the husband has preferred this appeal.
6. We have heard the learned Counsel for the appellant and the learned Counsel for the respondent.
7. It is submitted on behalf of the appellant that the Family Court was not right in dismissing the petition filed by the appellant. That in the instant case though the marriage took place on 26.08.1998 and the child was born on 22.11.1999. After the return of the respondent to the marital home there were no differences between the parties and that on account of the respondent falling ill, she went to her parents house and when the appellant went to get her back, she refused to return and thereafter when he took his parents and brothers to the respondent's parents house they were assaulted and a false complaint was lodged against the appellant and his parents in J.C. Nagar Police Station and after they were released on bail, another false complaint was filed under Section 498A of IPC before the Indira Nagar Police Station. That the appellant and his family have been put through undue harassment and mental cruelty on account of the false complaint filed by the respondent. Further the respondent failed to return to the marital home and despite a legal notice issued to her on 04.10.2000 calling upon her to join the appellant alongwith the child, she did not show any kind of inclination to return. On the other hand, she made false and baseless allegations against the appellant. Under these circumstances, the appellant has suffered cruelty at the hands of the respondent which aspect has not been appreciated by the Family Court. He therefore submits that since there is considerable evidence on record, the petition seeking dissolution of marriage by a decree of divorce filed by the appellant herein be allowed by setting aside the impugned judgment and decree.
8. Per contra, it is submitted on behalf of the respondent that it was the appellant at whose instance she returned to her parents house since she was ill and that the appellant alongwith certain anti-social elements came to her parents house and threatened them and hence she was constrained to file a complaint against the appellant and his parents. On account of the situation created by the appellant and his parents, the respondent had to initiate legal proceedings, which cannot be construed as acts of cruelty. Therefore, the Family Court was justified in dismissing the petition.
9. At this stage, it is relevant to note that as against the dismissal of M.C. No. 1218/2003 by the common judgment, dt. 16.12.2005, which was filed by the respondent herein under Section 9 of the Hindu Marriage Act, though M.F.A. No. 5565/2008 was preferred before this Court since steps were not taken for the compliance of the office objections, in view of order, dt.24.10.2008, the said appeal has been dismissed.
10. Under the circumstances, the only point that arise for our consideration in this appeal is as to whether the judgment and decree passed by the Trial Court in M.C. No. 110/01 calls for any interference.
11. From the material on record, It is not in dispute that the marriage between the parties took place on 28.08.1998 and out of the said marriage a child by name Aishwarya was born on 22.11.1999 and that the respondent returned to the marital home in June 2000. Since she fell ill, the respondent went to her parents house on 27.07.2000 and thereafter has not returned to the marital home. In fact it is also admitted between the parties that the relationship between them was very cordial and that there was no difference of opinion for about one and half years. It is only after the respondent visited her parents house when she was unwell that problem started between the couple, which has led to the filing of the petition by the appellant herein.
12. In fact, the appellant who is examined as PW-1 while reiterating the contents of his petition in his affidavit by way of examination-in-chief has stated that on 27.07.2000, the respondent alongwith the child left for her parents house and on 29.07.2000 he visited the respondent's parents house and asked her to return to the marital home on account of his love and affection towards the respondent. He has also stated in his examination-in-chief that even though a false complaint has been lodged by the respondent and her parents against the appellant and his parents, they were interested in taking back the respondent to the matrimonial home and reside peacefully. That no demand for dowry was made at the time of marriage or afterwards but the respondent went on lodging false complaints against the appellant and his parents which cause lot of mental agony and apprehended danger to ills life. That he has lot of love and affection for the respondent but she has been refusing to return to the marital home. That inspite of issuing legal notice, dt.04.10.2000 calling upon the respondent to return to the marital home alongwith the child, she got issued the reply making baseless allegations and the ill treatment of the respondent has caused deterioration in his health and not being able to bear the cruelty caused by the respondent, the petition has been filed for dissolving the marriage.
13. In support of his evidence, he has produced certain documents to prove that the appellant and his parents had spent considerable amounts on the sarees and jewelry of the respondent. In his cross-examination, he has stated that for one year after the marriage, the relationship was cordial. That he was not harassing the respondent for dowry. Since she was suffering typhoid for more than 20 days, the respondent intended to visit her parents house. PW-1 has denied that he and his father went to the parents house of the respondent and demanded money and when the demand was not fulfilled, they assaulted the respondent and her father. He also stated that since a criminal case was pending against him, he was not willing to take back the respondent. He has denied that he has sent out the respondent out of the marital house on account of his demand for dowry.
14. PW.2 is the father of the appellant who has filed his evidence by way of affidavit in examination-in-chief reiterating the stand of the appellant who deposed as PW. 1. In his cross-examination he has stated that no amount was received towards dowry at the time of the marriage and that there was no quarrel between the parties till 29.7.2000, but that when he and his wife and the appellant went to the house of the respondent, her parents and aunt and 3 or 4 other persons assaulted them, but they did not lodge any police complaint regarding the said incident. While denying that any dowry was demanded at the time of the marriage, PW.2 has admitted that gold bracelet and ring and chain were given to his son and some furniture was also given. While denying that he was trying to break the marriage of the appellant that the respondent keeping In mind the criminal complaint filed, he has admitted that he and his son are not ready to take the respondent back.
15. As opposed to this evidence, the respondent has let in evidence as PW.1 wherein she has stated that the relationship of her and her husband was very cordial and till the last week of July 2000, after their marriage which took place on 26.8.1998 there were no differences between them for about one and half years. That appellant, his parents and sister has demanded dowry and harassed her and that in the last week of July 2000 when she went to her parents house along with the appellants, there was some quarrel in the family, but there was no mis-understanding between her and her husband with regard to their matrimonial life. She has admitted that she lodged a complaint before the Jurisdictional police due to which the appellant and his family members were angry with her and her parents and they did not take her back to the matrimonial home in spite of her several requests. That one day she went to the matrimonial home and waited for a whole day for the appellant, but he and his parents did not take her and the child into the house. Thereafter legal notice dated 4.10.2000 was got issued in response to which she went to her husband's house along with the child, but the appellant and his family did not take her into the house and with no other alternative, she replied to the legal notice. According to the respondent since the appellant has withdrawn from her without any reasonable excuse, she filed the petition for restitution 01 conjugal rights in M.C. No. 1218/2003.
16. RW.1 has further stated that she along with her parents and the appellant and his parents filed a joint petition under Section 320 of the Cr.P.C withdrawing the criminal case No. 995/2000 on 6.2.2002 stating that the dispute had been settled and that the appellant and his family members had undertaken to take the respondent and the child back to the matrimonial home. But despite the said joint petition, the appellant and his family members had not taken her back to their house and hence she had sought for restitution of conjugal rights. She has also stated that she intended to forget all past incidents since her husband had stated that he would take her back along with the child. She has also stated that she wants to lead a harmonious life along with the appellant and the child.
17. In her cross-examination she has stated that the appellant was doing business in footwear at the time of the marriage in Commercial Street in a small shop but she does not know as to where their business was being run. She has also stated that three months after the marriage she conceived and gave birth a daughter and during her stay in the hospital, her in-laws and their family members and PW. 1 were visiting the hospital and looking after her. She was given nourishment during her pregnancy by her mother-in-law. After the birth of a child for a period of seven months, she stayed in her parental house and thereafter returned to the matrimonial home. Within fifteen days of her return she had a typhoid attack. Even the child had also developed typhoid and the appellant brought her to her parental house for further treatment. She has admitted that she gave complaint before J.C. Nagar Police on 29.7.2009 as per Ex.P21 and another complaint was lodged at Indiranagar Police Station as per Ex.P22. She has admitted as true that the appellant got his parents to her parents house for the purpose of enlightening them regarding the false allegations made by her. She has also denied that even though her family members picked up quarrel with the appellant and his family members and assaulted them, she lodged a false complaint against them. She has however, admitted that she was present in J.C. Nagar Police Station when the appellant and his parents were secured by the police. They were enlarged on bail. Thereafter another complaint was filed by her before Indiranagar Police. She has denied that she has no intention to join the appellant and lead a marital life.
18. The father of the respondent has let in evidence as RW.2 re-iterating what has been stated by RW.1 by way of an affidavit in lieu of examination-in-chief. In his cross-examination he has stated that he and the appellant's father shared the marriage expenses equally and that in all a sum of Rs. 1,00,000/- was spent for the marriage. He sold his house to bear the marriage expenses of his daughter. He has also admitted that his son-in-law i.e., the appellant was visiting the hospital when his daughter was admitted for delivery. He has also admitted that his son-in-law and their family members attended the naming ceremony of his grand daughter and they gave gold and silver gifts to the child. He had also given gold and silver articles to the child at the time of naming ceremony. After the naming ceremony respondent returned to her husband's house, but since she fell ill with typhoid, respondent and the child came to his house along with the appellant at about 10.a.m on 27.7.2000. He has also stated that since there was some mis-understanding between his daughter-respondent and her sister-in-law during her stay with them and in order to resolve the problem, his son-in-law had secured his parents to his house to clear the allegations made by his daughter. There was a quarrel on that day and that he gave a complaint in J.C. Nagar Police Station at around 10.30 or 11.a.m and the Police Officer held an enquiry with the appellant. He has also admitted that on the same day, he took his daughter to Indiranagar Police Station and lodge one more complaint against his son-in-law alleging that they had harassed and ill-treated her for the sake of dowry. According to him he and his daughter sustained injuries during the quarrel which took place and they took treatment as out-patients in Bowring Hospital and from Bowring Hospital they went to Indiranagar Police Station at about 3 or 3.30p.m and lodged the complaint. Two months thereafter his daughter had gone to the house of his son-in-law along with the child without his knowledge and his son-in-law lodged a complaint against his daughter before the Ulsoor Police Station and drove her away from his house. He has also admitted that in order to teach a lesson to his son-in-law, two complaints were given on the same day by himself and his daughter out of anger, as both of them were assaulted by the appellants and his parents. He has narrated in detail the amounts spent towards the marriage and the gifts given by him to his son-in-law at the time of marriage.
19. RW.3 is a common family friend of the parties who had proposed the alliance between the parties in his affidavit by way of examination-in-chief has stated that the respondent's father had agreed to give gold and silver ornaments and other items to the appellant and it was agreed by both the parties to bear the marriage expenses. He has also stated that silver articles were also given at the time of marriage and that he attended the marriage reception. He has also stated that the respondent's father had purchased a house measuring 10' x 22' and he had constructed a ground floor portion with RCC roof and first floor with A.C Sheet house and gave it to his daughter and that he had learnt that the appellant had filed a case for divorce and similarly respondent has filed a case for restitution of conjugal rights.
20. In his cross-examination he has stated that he made the proposal of the respondent to the petitioner in the month of October 1998 and the engagement ceremony took place about 8 or 9 months or a year prior to the marriage- During the marriage negotiations, no discuosion about dowry took place in his presence, but it may have been discussed amongst themselves. He does not know anything about the complaint given by the respondent against the appellant and his family members.
21. Since the appellant has sought divorce on the ground of cruelty, it is necessary to appreciate the evidence in the light of the legal principles and precedents.
22. In Black's Law Dictionary the term 'mental cruelty' as a ground of divorce has been defined as a course of conduct of a spouse that creates such anguish that it endangers the life, physical health or mental health of the other spouse.
23. The Hon'ble Supreme Court in the case of N.G. Dastane (Dr) v. S. Dastane reported in : (1975) 2 SCC 326 has observed that enquiry by the court in a case where cruelty is alleged must be as to 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.
24. In the case of V. Bhagat v. D. Bhagat reported in : (1994)1 SCC 337, it has been observed that mental cruelty in Section 13(1)(i-a) 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. 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.
25. In the case of Savithri Pandey v. Prem Chandra Pandey reported in : (2002) 2 SCC 73 the Hon'ble Supreme Court observed that cruelty must 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.
26. In the case of Parveen Mehta v. Indrajit Mehta reported in : (2002) 5 SCC 706 it has beer; observed that 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.
27. In the case of A. Jayachandra v. Aneel Kaur reported in : (2005) 2 SCC 22 it has been observed that in physical cruelty there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, 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.
28. In the case of Vinitha Saxena v. Pankaj Pandit reported in : (2006) 3 SCC 778 it has been observed that as to what constitutes the required mental cruelty for the 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.
29. In the case of Samar Ghosh v. Jaya Ghosh reported in : (2007) 4 SCC 511 the Hon'ble Supreme Court after reviving the English, American, Canadian and Australian cases held that no uniform standard can ever be laid down for guidance with regard to mental cruelty. But however, has enunciated certain instances being illustrative but not exhaustive of what constitutes mental cruelty wherein it has been held that the married life should be reviewed as a whole and 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. But mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-today life would not be adequate for grant of divorce on the ground of mental cruelty.
30. While referring to an earlier decision in the case of Naveen Kohli v. Neelu Kohli reported in : (2006) 4 SCC 558 it has been observed that Public interest demands not only that the married status should as far as possible, as long as possible and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
31. While applying the above principles to the present case, as already observed and as admitted by the parties, the relationship between them was cordial for about one and half years after the marriage which took place on 26.8.1998 and alter the birth of the child, the respondent returned to the matrimonial home few months after the birth of the child, it is only on account of the incident that occurred on 29.7.2000 that a police complaint was lodged against the appellant and his parents before the J.C. Nagar Police and thereafter another police complaint for dowry harassment was lodged before the Indiranagar Police Station on the very same day. According to the appellant this caused lot of mental agony to him and his parents since a false criminal case was lodged which is an act of cruelty in the eye of law.
32. However, what is of significance is that C.C. No. 995/2000 which is a criminal case registered against the appellant and his parents pursuant to the complaint of respondent on the file of CMM., Bangalore ended in acquittal on account of the joint memo filed by the parties and their parents under Section 320 of Cr.P.C, This fact clearly implies that the respondent intended to join the appellant and lead a marital life and hence the offence was compounded and a compromise was ax-rived at between the parties. In fact even after lodging of the complaint, the respondent went to her matrimonial home in order to live with the appellant, but she was sent away. On the other hand, it is the contention of the appellant that the marriage has broken down irretrievable on account of the cruel acts of the respondent and therefore, he is entitled to the relief of divorce. The question therefore is whether on account of the incident which occurred on 29.7.2000 and the consequent complaints filed by the respondent against the appellant and his parents can constitute cruelty within the meaning of law so as to result in a dissolution of the marriage itself. What is to be noted is that on 27.7.2000, the respondent along with the child went to her parents house for treatment of typhoid. Within a period of two days, the appellant visited the respondent and asked her to return since he was interest in the company of the respondent and the child. At that point of time there were exchange of words and in order to clarify things on 29.7.2000, the appellant visited the respondent s house with his parents and at that time the situation went out of control and the respondent filed the complaint against the appellant and his parents. This gives an indication that the quarrel was between the two families and not between the parties as such. The complaints filed by the respondent and her father were or account of the quarrel that took place between the families on 29.7.2000 and the injuries sustained by them in the said quarrel. Therefore, the fact that quarrel took place on 29.7.2000 is established but the filing of the complaints cannot in our view constitute cruelty on the part of the respondent viz-a-viz the appellant. What is relevant to note is that the compromise was arrived at in the criminal proceedings and the offence was compounded with a view to bring about amicable settlement between the parties so that they could live together. Hence in the absence of there being any other allegation against the respondent, we are of the considered view that the incidents of 29.7.2000 and subsequent complaints filed by the respondent and her father cannot be the basis to arrive at a conclusion that the respondent has been guilty of cruelty against the appellant. Further the parties arrived at a compromise so that their relationship could be restored and the respondent could join the appellant along with the child. In fact the respondent had filed M.C. No. 1218/2003 seeking restitution of conjugal rights which however, was dismissed by common Judgment dated 16.12.2005 against which MFA. No. 5565/2008 was preferred before this court. The fact that the appeal was filed by the respondent challenging the dismissal of her petition for restitution of conjugal rights implies that the respondent has an intention to join the appellant in his house.
33. The evidence of Rw. 1 to the effect that there were no differences between the parties for 1 1/2 years after the marriage and that in July 2000 there were quarrel between the faintly members of both the parties and the fact that in the criminal proceeding namely C.C. No. 995/2000, the appellant had undertaken to take the respondent and the child back to the matrimonial home and hence a joint petition was filed for closing the said proceeding and the fact that RW.1 intended to forget all past instances since her husband had promised her to take her back along with the child, cannot also be dis-believed. No doubt in the heat of the moment in the quarrel which took place on 29.7.2000, the respondent and her father may have been injured. However, the said injuries caused to the respondent and her father are wholly unintentional and an impulsive act, the complaints may have been filed by the respondents. But in view of the conclusion of the criminal proceedings and in the absence of there being any other reason for the dissolution of the marriage would also mean that the appellant has failed to make out a case as against the respondent.
34. As far as the decisions of the Apex Court rendered in the case of Sanghamitra Ghosh v. Kajal Kumar Ghosh reported in : (2007) 2 SCC 220 and in the case of Kanchan Devi (Smt) v. Pramod Kumar Mittal and Anr. reported in : (1996) 8 SCC 90 are concerned, the same were relied upon by the Counsel for the appellant to contend that since there has been an irretrievable breakdown of marriage between the parties herein even in the absence of proof of cruelty by the appellant against the respondent a divorce decree would have to be passed. On perusal of the said judgment we note that in exercise of the powers under Article 142 of the Constitution of India, the Apex Court on being satisfied that the marriage between the parties in the said case had irretrievable broken down granted divorce in terms of Section 13B of the Act by mutual consent in the above decisions since the parties were living separately for a period of more than ten years and there was no possibility of re-conciliation and dissolved the marriage by a decree of divorce. The said decisions are of no assistance to the appellant for the reason that the Apex Court exercised powers under Article 142 of the Constitution of India to do complete justice between the parties. Further irretrievable break down of marriage is not a ground for divorce under the Hindu Marriage Act and secondly, on the facts and circumstances of the case we do not thing that there has been a breakdown of the relationship between the parties. since July 2000 on account of criminal litigation as well as the cases before the Family Court which ended in December 2005 and subsequently, on account of the pendency of the appeals since the years 2006, the parties have been living separately. Therefore, in our view there is no irretrievable break down of marriage in the instant case and further this court is not empowered to exercise power analogous to Article 142 of Constitution and hence we cannot take sustenance from the said decisions.
35. Since we have come to a conclusion that the appellant has failed to make out a case on the basis of cruelty viz-a-viz the respondent, we confirm the Judgment and Decree passed in M.C. No. 110/2001. Parties to bear their own costs.