Bhawani Singh, J.
1. This appeal, under Section 28 of the Hindu Marriage Act, 1955 (Act No. 25 of 1985) for short 'the act'), is directed against the judgment of District Judge, Shimla, in case No. 2 3-S/3 of 1988 whereby the petition moved by the appellant under Section 13 of the Act, for dissolution of the marriage by a decree of divorce, has been dismissed.
2. The facts, in brief, are that the marriage was solemnised between the parties on November, 7, 1980 at Nirankari Colony, Delhi. Out of this wedlock, Saravpreet was born on 4.1.1982 at Delhi. At the time of the marriage, the appellant was serving as Captain in the Indian Army and was posted at Ranchi. The respondent was taken- to Ranchi where both of them lived together for sometime and thereafter they went to Banglore and came to Shimla as well.
3. The grievance of the appellant is that after the marriage, the respondent had been treating him with cruelty. She had been wilfully inflicting pain and misery to the appellant. She would also indulge in petty fault-finding and go on scolding the appellant. The appellant mentions certain instances to highlight his complaint and in this regard he narrates that after the marriage he took the respondent to Ranchi, the place of his posting According to the Custom, the newly married couple was invited by other married officers, including senior officers for dinners and lunches. Whenever so done, the respondent, at times, would refuse to go saying :
^^esjs dks vPNk ugha yxrk A blfy, vkSsfQljt dh
wives
ds lkFk fcuk fdl eryc ds ehBh cudj ckr djuh iM+rh gS A**
This kind of behaviour, the appellant contends, would put him in an embarrassing and humiliating situation with the result that he used to put up excuses for not bringing the respondent to attend such functions and apologise to his senior officers. Then, in his own turn, he used to make excuses for not inviting them saying that his wife was not feeling well and on occasions, the respondent would leave the food half cooked in the kitchen and go to her room event when the guests were in the house. In such a situation, he would have to get the eatables from the mess and the market. The respondent would not even come to the dining table to join them for dinner or lunch faining headache or some other kind of ailment but as soon as the guests would go, the respondent would get up, cook things and eat herself. Reference to an occasion when Mr. and Mrs. Bindra were invited for lunch has been made. On this occasion, the appellant submits, When Mrs. Bindra went to the kitchen to extend a helping hand to the respondent, while the appellant and Mr. Bindra were sharing a glass of beer, on being asked whether the lunch was ready, the respondent said from inside :
^^cMs+ ykV lkfgc cus gSa A dSls gqDe pykrs gSaA eSa D;k budh ukSdj yxh gw A**
The respondent left the kitchen with the result that the food had to be cooked and served to the appellant and Mr. Bindra by Mrs, Bindra herself. The result of this kind of attitude on the part of the respondent was that his friends and other brother officers used to refuse to come to the appellant's house.
4. The further incident relates to the time when the appellant's sister was going to be married. In order to help his mother in arranging things, the appellant sent the respondent to Shimla but instead of helping his mother, she used to taunt her and create hindrances and when the appellant came to Shimla on the occasion of the marriage of his sister, the respondent used to tell him that his mother had been spending a lot for the marriage of his sister, whom she used to abuse by saying :
^rqEgkjs cgu dk dqN u jgs A lkjk ?kj iSlk ysxbZ gS A bldk dqN u jgs A*
After the marriage of his sister, the appellant had to go to Banglore for a training course. Although it was not possible to take the respondent, however, looking to her behaviour with his mother, she was taken to Banglore. There also her behaviour was the same. She used to create problems and find fault with everything and the situation came to such a stage that he had to send the respondent to Delhi.
5. One more incident is also narrated in the petition. It pertains to the time when the appellant had resigned from the Army to look after the business of his father at Shimla since enough funds had been invested in the same. The respondent always quarrelled with the appellant's mother and would not cook meals for the appellant. One she said :
^^viuh ek ls dgksa [kkuk cuk ns A lkjk fnucSBh jgrh gS irk ugha dSls [kkuk [kkrh gS A vius [kkfoUn dks dke djck&djckdj; ekj Mkyk A vc rqEgkjh ckjh gS A odZ'kki dks vkus uke j[kh gS A vkSj rqEgsaflQZ 700 :i;s salarynsrh gS A**
The appellant was advised by his mother to live separately alongwith the respondent. They did so and shifted to 'Sham Rock Bank', Chhota Shimla. Even there, things did not improve. Whenever the appellant would go home after days work in the workshop, he would find no meals for him at times and had to eat outside. The respondent did not want to stay even there complaining that the house was not worth living and was not fit even to be a servant's quarter although the appellant's family had taken the same on rent for the last more than two decades. The result was, the respondent ran to Delhi where from she came back after 8/9 months and repeated the same behaviour. His mother was abused, scolded and beaten and when she was scolded by the appellant for this misbehaviour, she ran to Delhi. When the respondent came to Shimla on 3.8.1986 and stayed at 'Chanakya Hotel', she lodged a false report with the police against the appellant under the Dowry Prohibition Act and it was the good luck of the appellant that nothing could be proved. Finally, the appellant asserts, that many more deliberate acts of inflicting pain and misery on him would be placed before the Court during the trial. It has also been averred that the acts of cruelty on the part of the respondent have not in any manner been condoned.
6. The respondent has repudiated the allegations of the appellant. Number of preliminary objections have been raised. On merits, it has been contended that the appellant manipulated her stay at Chankaya Hotel at Shimla to enable him to file the petition and to refuse her entry into his place of living. The respondent also reported the matter to the police and complained about the behaviour of the appellant and his mother. The respondent had also lodged a complaint against the appellant earlier to that also. Stay at Ranchi, Bangalore, Delhi and Shimla has been admitted by her. Relating to allegations of cruelty, the version of the respondent is that the same are false and concocted. As a matter of fact, she had been accompanying the appellant willingly wherever he desired and alleged refusal; on her part have been denied. It has also been denied that she caused any humiliation or embarrassment to the appellant, as stated by him pointing out number of such incidents. The incident relating to Mr. and Mrs. Bindra has been specificaly denied and it has also been stated that she did not know this couple. Other incidents alleged by the appellant, mentioned above, have been denied. It has also been denied that the respondent slapped her mother-in-law. The respondent alleges that the appellant wants to marry another girl since his family is not satisfied with the respondent. The allegation of demand of more dowry has also been set-up. Her further case is that the couple did not shift to 'Sham Rock Bank. Chhota Shimla' on the advice of the mother-in-law, but they did so on account of the fact that Saravpreet Singh had two attacks of jaundice prior to March, 1983 and this place is more sunny as compared to 'Nirankari Bhavan'. The appellant used to go early in the morning, leaving her and her son at home and returned late at night. His behaviour did not improve when advised to come home in time. Instead, he started troubling the respondent on flimsy pretexts and levelled false allegations of theft against the respondent without verifying the facts and sided with his mother and sister on this issue. Thereafter he left living with them and it was due to the persuasion of Shri Harbhajan Singh Toor (P.W. 2) (maternal uncle of the appellant) that the appellant started living with them. In April, 1984, on one night the appellant drank heavily and turned the respondent out all alone at night. The respondent contacted 'Nirankari Baba' at Delhi on telephone at whose instance the respondent and the son were taken to Delhi by the appellant. The behaviour of the appellant has changed to such an extent that the respondent fears that any untoward incident can happen with her and the son in case she would live with the appellant. It has also been denied that the respondent ever refused meals to the appellant and he had to eat outside. The crux of thematter is that the respondent has denied the allegations set-up by the appellant in his petition.
7. In the replication, the preliminary objections have been answered and on merits it has been stated that the respondent resided in Chankaya Hotel Lakkar Bazar, Shimla' of her own volition and she was never disallowed ingress into his house as alleged by her. The respondent came to the residence of her mother-in-law and, at times, she was accompanied by police constables and wanted to enter into a room forcibly, although the same was locked and the key thereof was with the appellant, who was not there. It has been stated that the appellant had also lodged a complaint against her since he genuinely apprehended that she may not attempt suicide in order to falsely implicate the appellant. All other allegations of the respondent have been denied and the averments in the main petition have been asserted. However, so far as the intervention of Mr. Toor is concerned, it was the appellant and his mother who requested him to persuade the respondent to mend her ways and Mr. Toor bad come to Shimla when he was informed telephonically that the respondenthad locked herself in the premises and was not allowing others to enter the same. The allegations that the appellant after having taken liquor turned out the respondent, have been specifically denied and it has also been stated that the reason of taking the respondent to Delhi on certain occasions was with an idea that she may improve and mend her ways but with no change.
8. On the pleadinges of the parties, the Court framed the following issues :
'1. Whether the respondent is guilty of cruelty, as alleged OPP
2. Whether the petitioner is estopped to file the petition by his acts etc. as alleged OPP
3. Whether the petition lacks material and better particulars If so, the effect thereof OPR
4. Relief.'
9. Issues Nos. 2 and 3 were decided against the respondent whereas issue No. 1 has been decided against the appellant. The result was that the petition of the appellant was dismissed.
10. Shri A.K. Goel, learned counsel for the appellant, submits that the judgment under appeal deserves to be set-aside for the reasons, inter-alia, that the matter has been dealt with by the Court in a most cursory manner. The Court, it is urged, did not care to see that the evidence on the record which conclusively proved the factum of cruelty on the part of the respondent towards the appellant. Number of instances have been given and proved conclusively by production of cogent and convincing evidence, Shri Goel asserts. Further, it is also submitted that the behaviour of the respondent was so unbecoming, intolerable and harassing that it became absolutely difficult for the appellant to live with the respondent. Respondent's behaviour caused colossal mental and physical strain thereby turning the living of the appellant and his mother out of gear. The marriage in the facts and circumstances explained above, has irretrievably broken down and there is no possibility of the parties coming to any settlement rather it is in their interest in such a situation to live apart. Otherwise, there is every likelihood that the respondent would unnecessarily, unjustifiably and baselessly involve the appellant in any case by alleging demand for dowry by the appellant or may attempt suicide. Th; learned counsel for the appellant also submits that the District Judge did not correctly analyse and appreciate the evidence, with the result that wrong conclusions have been drawn. Even otherwise, when the Court had failed to effect a settlement between the parties, it was necessary in such a situation to allow the petition of the appellant against the respondent.
11. Miss Kamlesh Sharma, who appears for the respondent, has assailed the submissions of the learned counsel for the appellant. Her whole stress was that the petition for dissolution of the marriage by a decree of divorce has been rightly rejected by the District Judge and the impugned judgment is legally sustainable. In order to examine the submissions of the learned counsel for the parties it is necessary to look to the evidence and find out whether the appellant has succeeded in establishing his plea for divorce.
12. The appellant (P.W. 1) has given his own version of the matter. He has supported the allegations in the pleadings already reproduced and it is not necessary to repeat the same here. From his statement it appears that the respondent had been behaving unusually ; creating tension and problems to the appellant, on occasions she had been leaving him without any intimation. The respondent had been misbehaving and ill treating his mother, although hismother had never complained to him about the misbehaviour and ill-treatment she had suffered at the hands of the respondent, but he could notice the same. The mother-in-law has also justified this kind of behaviour on the part of the respondent towards her. Looking to the various acts of behaviour, it cannot be said that the complaint of the appellant as well as his mother against the respondent lacks credibility or these allegations are concocted or are ex agerations of minor or routine incidents of a married life. The evidence of mother-in-law, if read carefully ; indicates that she had always been trying to see that her son, the appellant, and the respondent could settle in a better way and she made all sincere efforts in this regard. It was she who advised the appellant to live away with the respondent at 'Sham Rock Bank', Chhota Shimla, where the respondent did not live for long and left for Delhi. Her behaviour towards the respondent was good.
13. The respondent's behaviour towards he husband cannot be considered to be of the nature which can be called 'normal in a family life'. Such upheavals in the behaviour of the respondent were continuous and repetitive. They commenced soon after the marriage and continued till the parties started living apart. The appellant has given elaborate mention of such acts of cruelty from time to time and his version cannot be doubted. It is truthful and discloses anguish and intolerable effect on his person. Look to her behaviour on occasions when he was in the army. Obviously, in army life, wives have not only to look to the personality of their husbands but try to see that maximum co-operation and appreciation is extended so that they can match their fellow officers. It is not possible in case he is not cared and appreciated by his wife. Even after leaving the army, incidents are not wanting when the appellant has been treated quite shabbily by the respondent. The incidents that he used to remain either without meals or used to take it outside, cannot be doubted nor can the incident of locking herself inside the house and keeping them away. The appellant has been subjected to detailed cross-examination, but nothing substantial, favourable to the respondent, has been elicited from his statement. In view of the circumstances appearing in this case, in my view, he is rightly apprehensive of his involvement in any incident in which he may not have to do anything.
14. Harbhajan Singh (P.W. 2), is the maternal uncle of the appellant. He was asked to come to Shimla through a telephone message when the respondent had locked herself in a room and everyone in the family was quite up-set. On reaching Shimla, he intervened and despite his persuasion for about 4/5 hours, no desired effect could be achieved and the respondent kept on crying and saying that she did not want to live with the appellant any more.
15. Lt. Col. J.B.S. Mehta (P.W. 3) had also stated about the reputation of the appellant and the respondent since he was also posted at Ranchi during that time. According to him, the appellant used to mix up with them freely and frequently but after the marriage, he stopped mixing up with them and nobody used to go to the house of the appellant since be had strained relations with his wife. The appellant carried this reputation although no such unpleasant incident took place when the couple had been invited by him, he states.
16. Rajwant Kaur (P.W. 4) is the mother-in-law. She has also given a detailed account of the whole issue, the behaviour of the respondent with her, her daughters and her son, the present appellant. She has also supported the appellant through and through and her statement cannot be doubted nor it can be said that ' he has any animosity against the respondent, rather, as already observed, her endeavour all along appears to be positive and reconciliatory so that the appellant and the respondent settle somehow or the other. She has denied that any demand of dowry was ever made.
17. Kartaro Devi (P.W. 5) lives near 'Sham Rock Bank' building. She has proved only the factum of the respondent once leaving the house in the morning without telling anyone about the purpose of the destination.
18. The respondent, Kamaljit Bhullar, not only examined herself in support of her case but produced her mother as her witness. She has repudiated the allegations of the husband and states that she accompanied the appellant to Ranchi, Bangalore, Delhi and Shimla. At no time she had been disrespectful to him or Ins officers or to the members of his family. She had denied that she had misbehaved on occasions when certain guests had been invited to their house or she showed reluctance to accompany the petitioner to the houses of his fellow officers. She refers to an incident with Lt. Col. J.B.S. Mehta and holds the appellant responsible for the same. She has also denied the visit of Mrs. and Mr. Bindra to their house but it appears from her cross-examination on this point that her denial is not truthful. She states that the appellant used to be guided by his mother which resulted in her differences with him. She has alleged that she was turned out of the house but no evidence has been produced to prove the same nor she has proved the fact that she was disallowed to enter the house by her mother-in-law which compelled her to stay at the hotel for sometime and leaving of Shimla for Delhi. She admits that she reported the matter to the police and complained about her ill-treatment at the hands of her mother-in-law and the appellant. She also admits that she initiated complaint against them for demanding dowry. She also alleges that the appellant used to drink and misbehave but she has not been able to prove any of the allegations, with the result that all these allegations have been set-up without any basis.
19. Smt. Inderjeet (RW-2) does not in any way improve the case of the respondent; rather the same indicates that the appellant or the members of his family were not unkind to the respondent. The allegation of demand for dowry has also remained unsubstantiated.
20. The impression 'cruelty' has not been defined in the Act. Therefore, the Court has to give its decision in the facts and circumstances of each case. For that purpose, the Court should make an assessment of human nature and human behaviour and the domestic life of the spouses to be surveyed as a whole before assessing their future relations. In a case of mental cruelty, the whole matrimonial relationship has to be taken into consideration.
21. 'Cruelty' cannot be put in strait-jacket of judicial definition since it is not possible and any attempt to do so, may prove abortive since cases coming before the Courts have their own peculiar individual facets calling individualistic approach to tackle them. Since cruelty is essentially a question of fact, so decided cases may not either apply or have very little value in view of the facts of that particular case. In Dr. N. G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, the Court observed that cruelty in matrimonial law may be sub-tie or brutal, physical or mental, that it may be by word, gesture or by mere silence violent or non-violent, since it may be physical or mental. In the latter case* it means a conduct which would render harmful or injurious for the petitioner to live with the respondent or it is of such a nature that creates a reasonable apprehension to that effect. It may consist of verbal abuses and insults by using foul and abusing language disturbing mental peace. The conduct may be ofsuch a nature and magnitude that it no longer remains within the domain of minor and routine wear and tear of married life.
22. In support of his contention, Shri A.K. Goel refers to 1980 HLR 546 (Smt. Nirmal v. Brij Mohan), AIR 1979 J & K 4 (Smt. Kamla Devi v. Balbir Singh), 19S3 HLR 173 (Manorama v. Koran Singh) and 1080 HLR 710 (Smt Madhu Rani alias Madhu Bala v. Tarsem Lal Verma), Shri Goel asserts that cruelty on the part of the respondent has clearly been established on the basis of the evidence adduced in the case. Further, there is no condonation of the cruelty by the appellant who had been just carrying on with the respondent right from the beginning and misbehaviour of the respondent increased with the passage of time ; thus compelling the appellant to move the present petition when it was no longer possible for the parties to live together. They had reached a stage where the respondent was always trying to involve the appellant in one or the other criminal offence without any basis. There is substance in these submissions of the counsel for the appellant. In addition to what has already been observed. I am of the opinion that the appellant has successfully proved his case under Section 13(l)(i) (a) of the Hindu Marriage Act, 1955. There is absence of any factor pointing out that the appellant is trying to take advantage of his own wrong.
23. Miss Kamlesh Sharma has contended that there is condonation of cruelty by the appellant from time to time, therefore, the appellant is not entitled to any relief. Reference to 1981 MLJ 84 (Sqn. Ldr. J.S. Sodhi v. Smt. Amar Jit Kaur), was also made. Perusal of this decision indicates that the facts in this case are entirely different. On facts, the Court held that the husband was more responsible for the situation that developed between the parties. By that way, the Court drew the conclusion that he was taking advantage of his own wrong. On the question of condonation, the Court was of the opinion that long cohabitation between the parties as husband and wife raises an inference of condonation. On this aspect, it can be said that cohabitation may be a test to determine condonation but it is not the whole test since resort to cohabitation may be there but the conduct of the parties inter-se may either remain the same or may conflagrate with the passage of time. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation, there must be, therefore, two things : (1) forgiveness and restoration (See : Dr. N.G. Dastane's case supra). In order to plead cruelty, the husband has to make out a case of higher degree to assert and prove that the matrimonial offence was not condoned. Reference to 1980 HLR 205 (Ramesh Chandra Ray v. Smt. Nandita Ray) and 1981 HLR 636 (Chitrakala Bewa alias Semal alias Dei v. Jambubati Bewa and others) was also made. However, these decisions do not in any way go against the case of the appellant. Finally, reference to AIR 1988 SC 407 (J.L. Nanda v. Smt. Veena Nanda) was also made. This case also does not help the respondent for the reason that the same has been decided keeping in view the peculiar facts of the case as is clear from paras 6 and 7 of the judgment.
24. The trial Court made serious attempt to effect reconciliation between the parties but it did not succeed since the parties took stiff stand against each other. Here also, there appears to be no let up in their stands and behaviour with each other. It did not soften with the passage of time ; rather it appears that the respondent was more keen to recover the arrears of maintenance to herself and to her son Saravpreet, awarded to them in an application under Section 125 of the Code of Criminal Procedure by a Court at Delhi and the appellant was made to pay the same in the Court. A frail plea, at the fag end of the argument, was made by Miss Kamlesh Sharma that the respondent was ready to live with the appellant. This was just a plea only without any repentance and real motive to act upon it.
25. The examination of the whole matter clearly demonstrates that the parties have reached a stage where there is no possibility of their reconciliation. They cannot unite to start a fresh leaf of life. It is a fit case where they should part company and live independently.
26. Accordingly, there is merit in this appeal and the same is allowed. The marriage between the parties is dissolved by a decree of divorce. The parties are left to bear their own costs.