K.S. Appa Rao, J.
This Civil Miscellaneous Appeal is filed by the respondent-husband against the order, dated 29-03-2004 passed in H.M.O.P.No.34 of 2002 on the file of the Principal Senior Civil Judge, Tirupati. The petitioner herein is the respondent in the said O.P. For convenience sake, the parties hereinafter will be referred to as they were arrayed in the O.P.
2. The petitioner-wife filed the said O.P. before the lower Court under Sections 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) to grant divorce by dissolving the marriage between herself and the respondent. The averments of the petition, which are necessary for the disposal of this appeal, read as follows:
The marriage between the petitioner and the respondent took place on 16-02-1990 at Padmavathi Kalyanamandapam, Tiruchanur, as per Hindu Rites and Custom and the petitioner joined the respondent at matrimonial house at Kamasamudram immediately after the marriage. The respondent was working in Canara Bank, Mulabagal, and he used to attend the office from Kamasamudram. The petitioner and the respondent lived together for a period of one year at Kamasamudram village. During the period of stay at Kamasamudram, the respondent subjected the petitioner to all sorts of his sadistic behaviour and used to lock the house by keeping her inside the house in a very suspicious manner about her character, for which the petitioner suffered lot of mental agony with his behaviour. In 1991, she came to Tirupati for studies and again joined the respondent in 1992-93. In the year 1993, she secured job in LIC at KGF and both the petitioner and the respondent lived together, but there was no change in the attitude of the respondent. On 16-02-1994, the petitioner secured a job in State Bank of India, Jammalamadugu and she stayed there in the house of one Jhansi who is their family friend, and while so, she became pregnant and obtained medical leave and joined her parents at Tirupati on the advise of the respondent. The respondent suspected her pregnancy whether she conceived through him as she was at Jammalamaugu. Later, the petitioner was posted at Palamaner on 04-07-1995, and both of them lived there together. The respondent used to visit the bank premises, where the petitioner was working, and make enquiries with regard to her character from her colleagues and others of that locality and put her through a lot of embarrassment. Further, whenever the petitioner came late to the house from the Bank, he used to question her, with whom she slept and enjoyed that time. He used to check the petitioner and her clothes. Likewise whenever she is in sound sleep, he used to kick her and asked her with whom she enjoyed on that date. Whenever he come late to the house, he used to check the bed, etc. Day by day his adamant attitude increased. There were occasions when the respondent made her sit outside the house throughout nights. For the welfare of her child, the petitioner accepted all the cruel behaviour till June, 2000. In June, 2000, the respondent grew wild and beat her and her child and left the matrimonial house and till the date of filing the O.P., he did not turn up. The respondent took away gold jewellery worth Rs.60,000/- by stating that he had to meet the house construction expenses at Bangalore. Therefore, the petitioner had no option except to seek the divorce.
3. The respondent filed counter affidavit denying all the averments made in the affidavit filed by the petitioner and stated that the petitioner is put to strict proof of the said allegations made against him. He further stated that all those allegations are made at the instance of the parents of the petitioner only, but not by the petitioner. They are trying to separate them. He looked after the petitioner very affectionately and he never behaved adamantly towards her. He provided all the requirements to the family members of the petitioner by spending his entire income. He secured the job to the petitioner and during the time of her pregnancy, he looked after her very affectionately. Without the company of petitioner, he is not in a position to lead peaceful life and he is ready to take back the petitioner to the matrimonial home. There is no cruelty as alleged in the petition and therefore, the petitioner is not entitled to seek divorce.
4. Before the lower Court, the petitioner herself was examined as PW-1 besides examining PW-2. On behalf of the respondent, he himself was examined as RW-1. No documentary evidence was adduced on either side.
5. The lower Court, upon appreciation of the evidence in the light of the contentions raised by the rival parties, came to the conclusion that the petitioner was able to prove that the respondent treated her with cruelty entitling her to seek divorce by dissolving the marriage with the respondent and while holding so, allowed the O.P. filed by the petitioner-wife and granted divorce by dissolving her marriage with the respondent. Aggrieved by the same, the respondent-husband filed the present appeal.
6. The learned counsel for the respondent-appellant herein submitted that the lower Court failed to properly appreciate the evidence of PWs.1 and 2 and RW-1 and gave erroneous finding granting divorce which is not sustainable. While drawing the attention of this Court to the evidence of RW-1, learned counsel for the respondent-appellant strenuously argued that the respondent is very much affectionate towards the petitioner and he always treated her with love and affection, but the petitioner, for the reasons best known to her, deserted the respondent at the instance of her parents. Therefore, the conduct of the petitioner amounts to desertion and the respondent’s conduct would not amount to cruelty. He further argued that the evidence of PW-1 before the Court is entirely different from the averments made in the petition and her testimony is improved one to suit her convenience that too without any positive proof. While drawing the attention of this Court to the evidence of PW-1 and placing reliance on the same, he further urged that the petitioner, at no point of time, raised the dispute about the alleged conduct of the respondent before any elders and not issued any notice prior to the filing of the O.P., and therefore, the evidence of PW-1 is not trustworthy about the alleged cruelty on the part of the respondent and the evidence of PW-2 cannot be considered as she being the mother of PW-1, and thus the petitioner failed to prove the ingredients of Sections 13 (1) (ia) and (ib) of the Act, in order to grant divorce on the ground of desertion and cruelty. Therefore, the judgment of the lower Court is not sustainable and it has to be set aside.
7. On the other hand, the learned counsel for the petitioner-respondent mainly urged that the evidence of RW-1 is sufficient to come to the conclusion about the conduct of the respondent and that from the beginning of the marriage, he was suspecting the fidelity of the petitioner on one pretext or the other and the same was continued stage by stage and reached its peak by attributing unchastety against the petitioner, making enquiries about her character at her working place, beating her on one pretext or other; and has drawn the attention of this Court to the evidence of PW-1 on that score. He further argued that the lower Court discussed well the evidence of PWs.1 and 2 and came to the correct conclusion while granting divorce to the petitioner by dissolving the marriage and in any view of the matter, the finding of the lower Court is totally sustainable and needs no interference.
8. In the light of the arguments advanced by both counsel, the main question that arises for consideration is whether the respondent-husband treated the petitioner-wife with cruelty, entitling her to seek dissolution of her marriage with the respondent and grant of divorce.
POINT:
9. Before proceeding to consider the question as to whether the respondent treated the petitioner with cruelty, in the light of the pleadings, evidence let in and arguments advanced by the rival parties, it would be appropriate if a reference is made to the provisions of Section 13(1)(ia) of the Act, which reads as under:
“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-
x x x x x x x x x
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
As per Section 13(1)(ia) of the Act, ‘cruelty’ is a ground for divorce. The word ‘cruelty’ is not defined in the Act. Therefore, what constitutes ‘cruelty’ in matrimonial relationships may be considered in the light of the legal proposition, which dealt with the definition and aspect of ‘cruelty’.
10. In RASUL v. RASUL ((1897) A.C. 395), ‘cruelty’ was defined as under:
“there must be danger to life, limb or health, (bodily or mentally) or a reasonable apprehension of it to constitute cruelty.”
11. The provision in clause (ia) of Section 13(1), which was introduced by Marriage Laws Amendment Act, 68 of 1976, simply states “treated the petitioner with cruelty”. The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct or and not fail in some circumstances. As held by the Supreme Court in PRAVEEN MEHTA v. INDERJIT MEHTA (2002 (2) HLR 513 (SC)), by the amendment the legislature must, therefore, be understood to have left to the Courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of man are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases.
12. The Supreme Court in SAVITRI PANDEY v. PREM CHANDRA PANDEY ((2002) 2 SCC 73) held that the word ‘cruelty’ postulates a treatment 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. As observed, ‘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. The Court should consider whether the conduct of one party is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible. This is to be adjudged not from a solitary incident, but on an overall consideration of all relevant circumstances.
13. In VIJAYAKUMAR RAMCHANDRA BHATE v. NEELA VIJAYAKUMAR BHATE (2003 (3) ALD 124 = AIR 2003 SC 2462), the Supreme Court gave a new dimension to the concept of cruelty which is different from cruel treatment for any particular duration or period. The Court may go by intensity, gravity and stigmatic impact of cruel treatment when meted out even once.
14. In a decision reported in NEELU KOHLI v. NAVEEN KOHLI (AIR 2004 All. 1), the Apex Court held that to prove cruelty, it is not essential that there is intention to be cruel and what is important is that the cruelty is of such a type that it becomes impossible for spouses to live together.
15. In a recent decision reported in Mrs. FLORA BOSE v. SUPROTI BOSE (AIR 2011 Del. 5), the apex Court held that:
“The word “cruelty” finds no definition in the Act. Therefore, the word “cruelty” used in Section 13 (1) (ia) of the Act is in the context of human conduct and behaviour in relation to and in respect of matrimonial duties or obligations. It is a course or conduct of one spouse which adversely affects the other spouse. Cruelty can be mental or physical, intentional or unintentional. While judging the physical cruelty, Court has to judge the degree of such physical torture and if it is mental, the enquiry is required to the nature of cruel treatment and then as to the impact of such treatment on the mind of the other spouse.
The ingredients of cruelty as required to be proved on record by the Petitioner are based on delicate personal relationship of husband and wife. Court, therefore, has to see the probabilities in a given case to find out the legal cruelty, not merely as a matter of fact, but as to the effect on the mind of the Petitioner spouse because of the acts or omission of the other. This cruelty besides physical, mental can also be corporeal.
To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the Petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Court dealing with the petition filed for divorce on the ground of cruelty has to keep in mind that the problems before it are those of human beings and the psychological changes in a spouses conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before such conduct can be called cruelty, it must touch a certain pitch of severity.
Petty quibbles, trifling differences should not be exaggerated and magnified to destroy a marriage. Foundation of marriage is tolerance, adjustment and respect towards one another. Therefore, inherently tolerance of each others fault to a certain bearable extent has to be kept in mind before considering a particular conduct of a spouse towards the other as tantamounting to “cruelty”. The Court has to consider the mental and physical conditions of the parties, their characters and social status and therefore, the incidents which can be termed as “cruelty” have to be adjudged in a case on the facts and circumstances and the evidence adduced on record. It is not required that physical violence as well as mental torture are essential to constitute cruelty. Even conduct inflicting a miserable mental agony and torture under the given circumstances may constitute cruelty within the meaning of Section 13(1) (ia) of the Act.
In case of physical cruelty, the Court generally gets direct evidence but in case of mental cruelty, the Court has to first make an inquiry to the nature of cruel treatment, the impact of such treatment in the mind of the spouse if it caused reasonable apprehension that it can be harmful or dangerous to live with the other. It is not necessary for the party to narrate each incident against the other spouse to constitute such conducts as cruelty. Sometimes two or three incidents may be sufficient to prove the cruelty committed on the petitioner by the other spouse. Many a times mental cruelty is more severe than the physical cruelty.
16. In SAMARGHOSH v. JAYA GHOSH ((2007) 4 SCC 51 = 2007 (4) ALD 11 (SC)), the Supreme Court has enumerated some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty. They 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 a 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.”
Evidently mental cruelty cannot be comprehensively defined, within which all kinds of cases of mental cruelty can be covered. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound and therefore, to assimilate the entire human behaviour in one definition is almost impossible. What may amount to cruelty in one case may not amount to cruelty in the other case because, concept of cruelty differ from person to person depending upon his/her upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. The concept of mental cruelty has changed with the passage of time; because of impact of modern culture through various medias electronic and print and other value system. Therefore, there cannot be any straight jacket formula or fixed parameters for determining the mental cruelty in matrimonial matters. No uniform standard, therefore, can be laid down for guidance what may constitute mental cruelty in matrimonial disputes.”
17. Though the learned counsel for the respondent-appellant, in support of his contentions, relied onNEELAM KUMAR v. DAYARANI (2010) 13 SCC 298),MANISH GOEL v. ROHINI GOEL (2010) 4 SCC 393),DASTANE v. DASTANE (1975) 2 SCC 326)and GARVEN v. GARVEN (1963) 1 WEEKLY LAW REPORTS 38), they are not relevant to the facts of the case on hand and hence, they are distinguished.
18. In the light of the above legal decisions governing ‘cruelty’ in matrimonial relationships, we may now notice whether the respondent treated the petitioner with cruelty, in the light of the pleadings, evidence let in and the arguments advanced.
19. In a case of this nature, the burden lies on the person alleging cruelty. In this case, petitioner-wife filed petition against the respondent-husband seeking divorce on the ground of cruelty. Therefore, it is for the petitioner to prove that the conduct of the respondent towards her amounts to cruelty.
20. The case of the petitioner, in brief, as stated by her, in the affidavit filed in support of the O.P. is that her marriage with the respondent was performed on 16-02-1990 at Sri Padmavathi Kalyanamandapam, Tiruchanoor, as per Hindu Rites and caste customs and at that time, the respondent was working in Canara Bank, Mulabagal. He used to attend the office by putting the family at Kamasamudram and both lived for one year at Kamasamudram village. During that period, the respondent subjected her to all sorts of sadistic behaviour and used to look at her in a very suspicious manner. He used to interrogate her as to what she had done throughout the day, when he went to attend his office and he would not receive the answers given by her. He is a character of doubtful nature. During the stay of one year with him, she suffered mental agony at the cruel and sadistic behaviour of the respondent. In the year 1991, she came to Tirupati for the purpose of studies and completed polytechnic course in the year 1992-93 and joined the respondent. Subsequently, she secured job in LIC and both lived together at Tirupati. Thereafter, she secured job in State Bank of India and was posted at Jammalamadugu. There she stayed in the house of one Jhansi who is their family friend and during which time, she became pregnant and obtained medical leave for about one year and joined her parents at Tirupati to look after her health on the advise of the respondent. The respondent was not happy about her stay in her parents house as he doubted the pregnancy whether she had conceived through him. Thereafter she got herself posted at Palamaner, which is a nearer place to the place where the respondent was working in order to have a close association with him. Later the respondent aggravated his doubtful and sadistic behaviour towards her and used to visit the bank premises where she was working and make enquiries with regard to her character from her colleagues and other persons of that locality and put her through a lot of embarrassment. Whenever she came to the house little late due to the burden of work in the bank, the respondent questioned her with whom she slept and enjoyed that time, and also used to check her body and clothes. Likewise, when she was in sound sleep, he used to kick her and wake her up and ask with whom she enjoyed all the day to be able to sleep that sound. Whenever the respondent came late to the house, the same attitude continued and he checked the bed etc. Day by day the adamant attitude of the respondent increased and he became psychic. The cruel and sadistic behaviour of the respondent became intolerable. The respondent used to beat her for no fault of hers, even in the presence of her parents and there are instances that the respondent made her to sit outside the house throughout the nights. For the welfare of her child and for social status, she accepted all the cruel behaviour of the respondent. In the month of June, 2000, the respondent grew wild against her and her child and beat them blue and black and made her to leave the matrimonial house.
21. Though this witness was cross-examined at length, nothing was elicited to disbelieve her testimony. The evidence of PW-1 clearly shows the seriousness of the instances faced by her in the hands of the respondent.
22. PW-2, the mother of the petitioner, corroborated the evidence of PW-1 regarding the alleged harassment and cruelty caused by the respondent towards the petitioner. However, she admitted in the cross-examination that she heard about the said harassment through PW-1. Therefore, it can be said that the evidence of PW-2 is only hearsay evidence. However, the hearsay evidence of this witness cannot be overlooked in view of the fact that the said information was furnished by her daughter (petitioner) alone. Generally the sorrow and happiness of a daughter will be shared with his mother. In that context, there is every possibility of PW-1 narrating her agony to PW-2.
23. To rebut the evidence of PWs.1 and 2, except the respondent himself was examining as RW-1, none others were examined. It is the evidence of PW-1 that she made all her attempts for mediation with the respondent through elders, but in vain. The respondent categorically admitted in his cross-examination that he had not taken any steps for mediation for settlement of the misunderstandings between himself and his wife. In the absence of any corroborated evidence, the evidence of RW-1 cannot be said as gospel truth. Merely because the petitioner did not issue any notice to the respondent before filing of the divorce petition on the ground of cruelty, it cannot be said that the alleged cruelty attributed by her cannot be termed as false and unfounded or an afterthought.
24. At this juncture, it is pertinent to note that the respondent has not taken any steps for filing the petition for restitution of conjugal rights though the petitioner has been living separately after she gave birth to a child. The silence on the part of the respondent by not filing the petition for restitution of conjugal rights or issuing any notice to the petitioner for marital life, shows that he is at fault and has not taken any steps to restore the marital relationship.
25. The spouses possess educational qualifications and each one claims a measure of social responsibility. Admittedly the parents of the petitioner are well to do. To ascertain the cruelty meted out by one spouse to the other, the conduct, background and the evidence of the parties has to be taken into consideration. The petitioner in her evidence clearly asserted that the respondent from the beginning of her marriage, suspected her conduct and humiliated her by one reason or the other and made her life miserable. The evidence of PW-1 is self-explanatory on that score. In any view of the matter, the conduct of the respondent from the beginning of the marriage, in particular after conception of the child, shows that he has been harassing the petitioner on one pretext or the other and such conduct of the respondent definitely amounts to cruelty though not physically, but mentally, which made the petitioner to file the O.P. for divorce as a last resort.
26. The instances narrated by the petitioner in her evidence clearly bring out the cruel conduct of the respondent towards the petitioner. Except denying the averments made by the petitioner, the respondent did not adduce any rebuttal evidence. Therefore, as held in the aforesaid judgments of the Apex Court reported in Neelu Kohli’s case(5 supra) and Mrs. Flora Bose’s case(6 supra), there cannot be any straight jacket formula or fixed parameters for determining ‘cruelty’ in matrimonial matters. It is not required that physical violence along with mental torture are essential to constitute cruelty, even the conduct of inflicting mental agony and torture, in given circumstances, may constitute cruelty. Therefore, in any view of the matter, the conduct of the respondent towards the petitioner amounts to ‘cruelty’, and the petitioner established the ingredients of Section 13(1)(ia) of the Act and accordingly, she is entitled for grant of divorce thereunder by dissolving her marriage with the respondent.
27. Hence, after hearing the learned counsel on either side and after going through the impugned judgment and the relevant proposition of law, we are of the opinion that the lower Court appreciated the evidence on record in right perspective and rightly allowed the O.P. Therefore, we are in entire agreement with the findings of the lower Court and they do not warrant any interference by this Court. The appeal is devoid of merits and thus it is liable to be dismissed.
28. In the result, the Civil Miscellaneous appeal is dismissed. No costs.