| SooperKanoon Citation | sooperkanoon.com/950124 |
| Court | Andhra Pradesh High Court |
| Decided On | Apr-02-2012 |
| Case Number | F.C.A.No.71 of 2011 & F.C.A.M.P.No.545 of 2011 |
| Judge | GHULAM MOHAMMED & K.S. APPA RAO |
| Appellant | Smt. Devi Niket Pillai |
| Respondent | Niket N Pillai |
Common Judgment: (K.S.Appa Rao, J.)
This Appeal is filed by the petitioner-wife against the order, dated 08-02-2011 passed in O.P.No.278 of 2009 on the file of the Judge, Family Court, Ranga Reddy District at L.B. Nagar. The appellant herein is the petitioner 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) 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:
3. The petitioner met the respondent in 1992 when they were living in opposite buildings. Subsequently, they got acquaintance and both of them wanted to marry, and accordingly, they got married on 09-02-1997 at Shiv Shankar Mangal Karyalaya, Maharshinagar, Pune – 37. The respondent got job at Chiplun. The petitioner, who was working in NIIT, also moved to Chiplun. Subsequently, the respondent was transferred to Pune. The respondent, being the male person, always used to dominate the petitioner and was taking her entire salary of Rs.10,000/- per month, for which the petitioner never objected. In 1998, the petitioner’s sister-in-law got married at Kerala, and the respondent and petitioner went to that marriage. Since the language and traditions are different, the petitioner could not actively take part in the marriage for which the respondent always used to call her as useless person and was hurting her feelings. In January, 1999, the mother of the respondent passed away and the entire household work was looked after by the petitioner since she is the only female person in the house. In February, 1999, the petitioner got pregnancy. The respondent never took her to the hospital for medical check ups. The respondent forced the petitioner to quit her job, and when she left the job, the respondent found fault with her stating that she had lost the job which would fetch Rs.10,000/- per month. Some arguments went on between them during the course of which the respondent pressed the neck of the petitioner. All the time the respondent was using bad language and abusing the petitioner in filthy language. The petitioner, in order to improve their financial condition, had taken up a job at HSBC at Hyderabad, and came to Hyderabad leaving the child with her mother. Many times the respondent assaulted the petitioner as a result of which she got black scars on her arms. All the time the respondent was criticising her dressing style and was always commenting on her physical parts. She could not enjoy the marital life with the respondent. A son was born to the petitioner on 03-10-2004. The petitioner had to attend the duty during night shift. She used to work at night and come home late in the morning hours. Even after five years of the marriage, there is no mutual love and affection developed between the petitioner and the respondent.
On one occasion, when the petitioner returned tired from work at 10-30 PM and was having dinner, the respondent picked up a quarrel stating that he was not informed about the late coming of the petitioner and abused her. He chased her around the dining table and hit her on head. Seeing his condition, she ran to bedroom and bolted from inside.
On another occasion, the respondent started hitting the petitioner and chased her around the dining table, and tore her gown. Out of fear she ran over to terrace and telephoned to the neighbours through cell phone. Thereafter the respondent had broken latches of all the bedrooms to prevent the petitioner from locking inside. One day the petitioner returned from her work and she was very much tired and fell into deep sleep and suddenly the respondent poured water into her ears to wake her up. Inspite of bearing the torture, he was very much violent against the petitioner. In 2008 summer, the group of three families visited Kerala and during that time, the respondent behaved very peculiarly in the hotel room, as he had fear that somebody will peep through either bathroom or bedroom etc. The petitioner celebrated respondent’s birthday though she had busy work. On that day, the respondent assured the petitioner to come within 15 minutes from 10 PM, but returned late and by that time, the petitioner was very much tired and slept for which the respondent found fault with her as to how she could sleep before him and he called her a corporate prostitute. He was always saying that she should die in a road accident.
On the night before the day of petitioner’s birthday, both the petitioner and respondent returned to house late. At that time, the petitioner requested the respondent to spare her of any physical torture, for which the respondent got angry and pushed her badly on a chair which broke and she fell down on the ground. She tried to call the neighbours through her cell phone, but the respondent snatched the same. The petitioner ran into neighbours’ house and informed about the incident. Subsequently, they went to Women Organization ‘Roshini’ for counselling. After one week counselling, the respondent started crying stating that he would look after her wife properly, but there was no change in his attitude, and again used to make derogatory, cheap and vulgar comments. Therefore, the petitioner, being unable to bear with the torture caused by the respondent, filed the O.P. against the respondent seeking dissolution of the marriage on the ground of cruelty.
4. The respondent filed counter denying the allegations made by the petitioner. He stated that he never mis-behaved with the petitioner and he looked after her very well. He was present at the time of her delivery on 23-11-1999 and attended all the formalities. He never objected her dress style and never commented about her physical appearance and private parts of her body. The allegations regarding bathroom incident are also false. He further stated that from the beginning the petitioner is not interested in sexual life with him. He never mis-behaved with the petitioner at Kerala trip. He encouraged her to have social life.
It is further stated that on the previous night before the birthday of the petitioner, they both attended a party and after returning to home at night, he asked the petitioner to participate in sex and the petitioner replied that it is useless to have sex with him rather than she would have preferred to have sex with her close society friend’s husband and in that connection, there was a fight between them. He never made any vulgar or derogatory comments against the petitioner. The petition averments are false and created for the purpose of filing this case to gain sympathy of the Court. He is interested to live with the respondent though she filed the case against him. Therefore, he prayed for dismissal of the petition.
5. Before the lower Court, the petitioner herself was examined as PW-1 and got marked Exs.P-1 to P-3 on her behalf. On behalf of the respondent, he himself was examined as RW-1 and got marked Exs.B-1 to B-4.
6. 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 had failed to prove cruelty on the part of the respondent and accordingly, dismissed the O.P. Aggrieved by the same, the petitioner-wife filed the present appeal.
7. This Court, during the pendency of the appeal, passed an interim order, dated 05-08-2011 in F.C.A.M.P.No.354 of 2011 as follows:
“The appellant shall hand over the custody of the children to the respondent on every Sunday in the morning at 9.00 A.M. through her servant. The respondent after enjoying the custody of the children, shall drop them at the house of the appellant by 8.00 P.M. on the same day. This arrangement shall continue for a period of three months.”
8. Now the respondent-husband filed F.C.A.M.P.No.545 of 2011 to appoint a lady Advocate Commissioner for implementation of the order of this Court, dated 05-08-2011 to take the children from the petitioner-wife and handover them to the respondent-husband by 9-00 AM on every Sunday and to handover the children to the petitioner-wife by 8-00 PM.
9. The learned counsel for the petitioner-appellant herein vehemently argued that the judgment of the lower Court is purely based on surmises and conjunctures and that the lower Court failed to appreciate the abundant evidence available on record with regard to the series of incidents and admissions made by the respondent in his cross-examination about his cruelty, and came to the wrong conclusion that the petitioner did not mention any specific dates of the instances alleged in the petition. She further urged that the lower Court failed to consider that the respondent through his harassing conduct created a compulsion situation to the petitioner to seek the assistance of her parents along with minor children, after which the respondent, instead of making an attempt to take the petitioner back, left her to her fate and started harassing her more and as such the petitioner left with no option and filed the petition for dissolution of marriage.
10. The learned counsel, while drawing the attention of this Court to the evidence of PW-1, finally urged that the petitioner made out a case under Section 13(1)(ia) of the Act for grant of divorce and the finding of the lower Court rejecting the request of the petitioner is unsustainable and sought for indulgence of this Court. In support of her arguments, she placed reliance on the decisions reported in KAMMA DAMODAR RAO v. KAMMA ANURADHA (2011 (1) ALT 636 (D.B.)and METHUKU SURESH @ SURESH SAGAR v. METHUKU ANURADHA (2011 (2) ALT 389 (D.B.).
11. The learned counsel for the respondent, while supporting the judgment of the lower Court, urged for dismissal of the appeal. He has drawn the attention of this Court to the evidence of RW-1 coupled with the evidence of PW-1. According to the learned counsel, the petitioner herself was examined as PW-1 and got marked Exs.P-1 to P-3. During the cross-examination, Ex.B-4 was marked by the confrontation, which is the bunch of e-mails sent by her to the Executive Member of the Welfare Association degrading the respondent, and in the cross-examination of PW-1, she clearly admitted that both of them stayed in the same flat at the time of filing the present O.P. and other suit. She also admitted that her parents were also residing in the same flat and only on 30-08-2009 she vacated the flat and started living in another flat in the same premises. She also admitted that the parents of the respondent treated her like their daughter. She also admitted that she conceived in the year 1999 and she stayed with her husband and father-in-law in the same house, and as there is no female assistance, she used to go to Gynaecologist with the help of her mother at that time. She admitted that the respondent used to encourage her to be social and allowed her to involve in social activities. During the summer of 2008, the respondent took her for summer trip to the State of Kerala. She also admitted that after filing the present O.P., she filed a case against the respondent and it is forwarded to Kukatpally Police Station and a case in Crime No.424 of 2009 was registered for the offence under Section 498-A of IPC. The petitioner also admitted that she filed second complaint before the Jubilee Hills Police Station and sent E-mails, Ex.B-4, to all the residents of the flat i.e., the Executive Members of the Committee, and they appraised giving of complaint by her and arrest of the respondent by the police. The respondent gave a complaint stating that the petitioner beat him and caused fracture to his left hand and took him to hospital. Therefore, the above events clearly read that the petitioner was so cruel and adamant towards the respondent, and inspite of the same, the respondent is willing to live with the petitioner as he is very much affectionate towards her.
12. The learned counsel further argued that the evidence of PW-1 coupled with RW-1 shows that the petitioner wanted to get rid of the respondent by hook and crook and wanted to occupy the flat, as such she filed two complaints and even beat the respondent and that there are no grounds to maintain the petition for divorce and the allegations made by the petitioner are common in day to day life and after 12 years of the marriage and having two children, the petitioner filed the present O.P. The respondent also filed a petition in I.A.No.2360 of 2009 for custody of the children and the same was allowed. Respondent had filed Ex.B-4, bunch of e-mails sent by the petitioner to her friend, Arul Mani, who was working in Taj Hotel and she was sending e-mails regularly even after the marriage and though the respondent objected for the same, she never stopped sending e-mails and in the said e-mails, she addressed the said person as dearest and ended with love and he also addressed the petitioner as dear Devi and ended with love you always and the contents of the e-mails clearly shows that it is not fit for a married woman to send such e-mails.
13. Therefore, the learned counsel for the respondent contends that mere fighting between the couple does not amount to cruelty as it is daily wear and tear of life and the petitioner miserably failed to prove the ground of cruelty and her admissions in her cross-examination itself shows that she herself harassed the respondent and therefore, the order of the lower Court is sustainable. In support of his arguments, he placed reliance on the decisions reported in NAVAL KISHORE SOMANI v. POONAM SOMANI (1998(5) ALT 234 (DB), K. LALITHAKUMARI v. K. RAMAPRASADA RAO (1992(1) ALT 631 (DB)and DASTANE v. DASTANE (1975) 2 SCC 326).
14. 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:
15. In this case, petitioner-wife filed petition against the respondent-husband seeking divorce on the ground of cruelty. In a case of this nature, the burden lies on the person alleging cruelty. Therefore, it is for the petitioner to prove that the conduct of the respondent towards her amounts to cruelty.
16. The petitioner filed her chief affidavit in consonance with the averments made in the petition. According to her, the marriage of herself and the respondent is inter caste and love marriage. After marriage she stayed at the house of the respondent at Pune with his younger sister and parents. She never had any problems initially with any of the family members of the respondent as they were all loving and affectionate towards her. While so, the respondent was posted at Chiplun, as such she quit her job with NIIT and they moved to the said place and stayed there for three moths, and thereafter, the respondent was transferred to Pune. She again joined with NIIT and her salary was Rs.10,000/- per month as against the respondent’s salary of Rs.2,500/- per month. In 1998, her sister-in-law got married at Kerala. As she was new to all the customs and rituals in the family of the respondent, she could not actively take part as she need to be guided everywhere, for which the respondent behaved very harsh and states that she is useless and used vulgar language which hurt her a lot. In the month of January, 1999 despite all efforts and complete medication, her mother-in-law passed away. As the petitioner is the only daughter-in-law, she had taken over the household responsibilities along with her job. She conceived in the month of February, 1999. The respondent never accompanied her to the hospital. Thereafter the respondent started harassing her and at one instance he pressed her neck that nearly chocked her and a call to her parents resolved the situation. There were many incidents that even for the respondent’s bad language and physical abuse, she asked for his forgiveness. During the 8th month of her pregnancy, since their residence was on 5th floor and the lift was frequently out of order, she was advised to stay overnight at her mother’s house so that it could be easier to go to the hospital on the next day. She had begotten a female child on 23-11-1999. Thereafter, she decided to take a new assignment at HSBC, Hyderabad and she alone came to Hyderabad. Later on the petitioner got a job at Hyderabad and she was doing night shift, as she could be able to spend more time with her daughter during day time, which was a mutual decision. There were many occasions where she had black scars on her arms and face due to the respondent’s acts of violence only, because he did not approve of her dressing style. Right from the beginning of the marriage, she was strictly warned by the respondent to stay away from any social activity and he would very often inspect if she wore anything transparent/see-through or anything that he did not approve. There were few occasions, during out of stations, that the respondent could inspect the bathrooms to see if there was any remote possibility of some one from somewhere being able to see, as such put some newspapers and block it. The respondent was very critical about the physical parts of the petitioner, which made the petitioner feel very inferior, lacked the confidence and never enjoyed any of the experiences. The petitioner was blessed with a male child on 03-10-2004, after which she again joined to work and used to come home late in the mornings after the respondent left for the work to avoid confrontation and for this reason, their marriage lasted for five years with minimal interactions. Later they shifted to a new home and over a period of time, they made a group of friends with three other families who used to have get-together over week ends. On one occasion, when she returned tired from work at about 10-30 PM and was having dinner, the respondent argued as to why she did not let him know that she would be late. At that time there was an altercation and the respondent chased her around the dining table and hit her so hard on the head. Another instance is that one night when the respondent did not have his way around, he started hitting and pushing the petitioner around the dining table and tore her gown and she ran to the terrace wherein the respondent kept calling her on her cell phone. The respondent has broken the latches of all the other bedrooms thus preventing the petitioner from locking the other rooms. Another incident was that when she had returned tired from work and fell into deep sleep, she suddenly realised that the respondent was pouring water into her ears to wake her up, despite of her restlessness and inability to take up persistently, he behaved in the same manner. She had begotten a male child on 03-10-2004.
17. The petitioner further admitted that in 2008 summer, the group of three families, the petitioner and the respondent proposed to visit Kerala which was entirely planned by the respondent. During the entire trip, the respondent used to keep a watch on her, which was observed by everyone. She was questioned on each and everything and as usual the hotel bathroom windows were covered with newspapers. On the night before her birthday, when both of them returned late night from a get together, she requested the respondent to spare her of any physical torture, for which he got furious and pushed her badly on a chair which broke and she finally fell very hard on ground. She tried to call her neighbour through her cell, but the respondent snatched the same and in the scuffle the phone was damaged. Somehow, she called her neighbour through the intercom phone and rushed to her home. Her neighbour called the other friends at that hour of the night and after narrating the entire episode, debated as to whether she should approach the police directly and through the women’s association. Finally all of them accompanied her to home and waited outside till she safely locked herself in her parents’ bedroom. This incident finally made her to visit a lawyer and get details as to how she could go ahead with separation. However, as a last effort, she also contacted the women’s organization and started sessions with the counsellor there. After a week of physical separation and complete ignorance from her side made the respondent break down and started crying before her. The counselling did not help much although it started well. The respondent has been creating lot of mental tension by making derogatory, cheap and vulgar comments for everything the petitioner does. Therefore, as the behaviour of the respondent was becoming more aggressive and torturous day by day and as being unable to bear with the cruelty meted out by her physically and mentally in the hands of the respondent, she filed the present petition to dissolve the marriage.
18. Against the said evidence, the respondent as RW-1 deposed that the marriage of the petitioner was performed on 09-02-1997 at Pune and both of them were acquainted with each other from 1992 and after the marriage they were staying with his parents and the petitioner never used to do any house work and the mother of the respondent used to attend the same. The respondent always used to listen to the petitioner and the petitioner used to control the entire household. The petitioner conceived in the month of February, 1999 and joined her mother as there was no female assistance in the house of the respondent to look after her and the petitioner filed the O.P. with false allegations. The respondent further deposed that from the beginning, the petitioner was not showing any interest in marital life and only on his persuasion, she used to participate in sex and many times, the respondent requested her to accompany to a doctor, but she bluntly refused and she angrily shouted the respondent for the advise. The petitioner does not have any respect towards him and she made unnecessary allegations against him. The petitioner’s parents joined them from September, 2004 and started living with them. The petitioner is not interested to spend time with him and she wants to avoid him and in order to avoid fulfilment of her matrimonial duties to the respondent, she shifted herself to the bed room of her parents and intentionally avoided him. The petitioner was arrogant and not interested to listen him. He spent an amount of Rs.50,000/- for the trip to Kerala, but inspite of that, she never changed and instead of changing, she has created a story. He further deposed that on the previous day of her birthday, they both attended a party in friends house and after that returned to house at night. When he requested her to have sex, she stated that it is useless to have sex with him rather than she would have preferred to have sex with her close society friend’s husband and in that connection, there was a fight between them and thereafter the petitioner left bedroom and he went to sleep alone in the bedroom thinking that the petitioner might have slept in their parents bed room or would come back later, but she went outside and wake up the family friends, who are staying in the same complex, and complained them that she is going to make a police complaint against the respondent, and they pacified her and later she came back and slept in the flat. In the morning, the respondent was astonished to know the details from one of the family friend. Subsequently both of them decided that they should go for counselling, and accordingly, he attended for counselling. The petitioner, at the time of filing the above O.P., was residing with the respondent and she also filed I.A.No.677 of 2009 for injunction restraining the respondent from coming to the flat in which they were residing, and the Court refused to grant injunction stating that no injunction can be granted against the co-owners. Subsequently, she filed another I.A.No.678 of 2009 for interim maintenance and the same was also dismissed. Thereafter the petitioner filed another suit in O.S.No.10 of 2009 in addition to the present O.P. claiming declaration that she is the absolute owner of the flat and filed similar injunction petition followed by a private complaint under Section 498-A of IPC against the respondent and he obtained anticipatory bail. The petitioner beat the respondent and caused dislocation of his left shoulder and he took treatment and gave complaint against the petitioner on 26-05-2009 at Alwal police station. The petitioner also sent e-mails on 25-05-2009 to all the office bearers of the Residents Welfare Association, where both were residing, stating that the respondent is arrested by Jubilee Hills Police and released on bail, and tried to defame him. The petitioner voluntarily vacated the flat on her own on 30-08-2009 and took all her belongings including common things and shifted to flat No.331 at 8th Block in the same Manasa Sarovar Heights. Later he filed I.A.No.2360 of 2009 for interim custody of the children, who are aged 10 and 5 years on week ends and the same was allowed. But subsequently, as the petitioner failed to handover the children, he was constrained to issue a notice to her and thereafter she sent the children on 16-01-2010 and in February, 2010, but from 13th March, 2010, she failed to send the children, and as such he filed contempt petition and the same is pending. Finally he stated that the petitioner was making friendship with one Arun Mani who was working in Taj Hotels and she was sending e-mails to him daily even after the marriage which shows that the petitioner is not having interest with the respondent from the beginning and the e-mails sent by her from 23-07-2002 to 09-01-2003 are filed herewith for kind perusal of the Court which clearly shows that she was in touch with the said person daily without the knowledge of the respondent and after she joined in HSBC, she stopped communicating with the respondent, who was in Pune, and even after he shifted to Hyderabad, her behaviour has changed and on finding the e-mails, he told the petitioner politely that it is not good for a married woman to send such e-mails to a third person and the petitioner promised that she will not continue the same. But the respondent recently came to know that she is in touch with the said person through face book and the respondent is filing the said e-mails which shows the behaviour of the petitioner and she wants to get divorce by hook or crook and as such she filed the O.P. in haste by making false allegations and without thinking about the welfare of the children and the incidents mentioned in the O.P. are all trivial issues which are common in day to day life and does not amount to cruelty. The petitioner, by filing the present O.P., humiliated and abused the respondent and beat him and filed false 498-A case after filing the present O.P. only to pressurise the respondent to give divorce. But still he has got no complaint against the petitioner and he want to continue the marital knot. As such he does not want to make any allegations against her.
19. In order to arrive at a finding, the truth or otherwise of the allegations made by both parties, it is pertinent to evaluate their respective evidence.
20. The sum and substance of the evidence of PW-1 is that the respondent is having peculiar character of criticising her physic, and he was in the habit of observing her moments in suspicious manner. The petitioner in her evidence narrated the series of events experienced by her during her stay with the respondent. Admittedly prior to their marriage, they had good intimated friendship for about three years. It is also an admitted fact that the marriage is inter caste and love marriage. After the marriage, the petitioner joined the respondent at her matrimonial house. After a couple of years, they moved to Hyderabad and both started working in different offices. During their wedlock, they were blessed with a son and daughter. It is the contention of the respondent that the petitioner is not cooperative for sex and she was participating in sex on his pressure. The fact remains that they were blessed with two children during their wedlock. Unless either of the spouse is interested party for sex, there is not possibility of conception. The conception of two children by the petitioner clearly shows that she was a consent party for conception. The respondent did not show any instances of reluctance by the petitioner towards sex. As there is a marital life between the petitioner and respondent, they were blessed with two children during their wedlock. Therefore, it cannot be said that the petitioner is reluctant for sex as pleaded by the respondent and the plea of the respondent is not sustainable.
21. A perusal of the cross-examination of PW-1, which runs into ten pages, reads how she was put to thorough cross-examination on behalf of the respondent. During the course of cross-examination she admitted that after marriage, she joined the society of the respondent and lived with her parents-in-law in Pune, and they treated her like their daughter. In the month of April, 2003 the respondent came to Hyderabad and both of them were living in Hyderabad.
22. Though number of suggestions were put to PW-1 on behalf of the respondent, nothing was elicited to lend support to the case of the respondent. It is elicited during her cross-examination that she filed a complaint before the police against the respondent. It is also elicited that she sent e-mails Ex.B-4 against the respondent to all the members of the flat where they were residing. She denied a suggestion that she has no interest for sexual act and admitted that she and the respondent attended for counselling. If really the petitioner is not inclined to join the respondent, her consent to appear before the counselling does not arise. As she thought fit that counselling will help their family life, she attended the same along with the respondent. The reason for discontinuing the said counselling, is not forthcoming by the evidence of either PW-1 or RW-1. Normally the marriage counselling will be at the option of the parties concerned. As both parties felt that counselling is necessary for their smooth marital life, they approached for counselling, but it was a futile exercise. The petitioner was examined as PW-1 as a sole witness as she is the only person who has best seen and meted out with cruelty and harassment by the respondent. Though PW-1 was put to detailed cross-examination, except eliciting an admission that she filed a criminal case under Section 498-A of IPC in Crime No.424 of 2009, nothing could be extracted nor could be elicited. In fact the respondent himself admitted that it is the petitioner who was being cruel and has harassed him and that she had also beaten him and caused a fracture to his left hand and as such he lodged a police report with Alwal Police Station and the police called the petitioner to explain the same. But no documents are filed in support of the alleged injuries sustained by the petitioner.
23. Against the said evidence, the respondent in the cross-examination made several admission of his conduct. He made an allegation in his counter that the entire household work was done by his mother and contradictory to his statement he admitted that his mother had died on 19-01-1999 itself. He also admitted in his cross-examination that the petitioner was not acquainted with the respondent’s customs and traditions. He stated that he attended all the household work and not the petitioner and during his cross-examination admitted that the family was assisted by the petitioner’s parents. He admitted the fact that during the first pregnancy of the petitioner, himself and the petitioner were living on the 5th floor and the building was not supported by proper lift, which was often not functioning, which establishes the fact that the petitioner was put to a difficult situation of walking up and down the stairs during her pregnancy causing serious problem, as such she had shifted to her parents house and thereafter the respondent never looked after her while she was staying with her parents. He admitted that it was the petitioners’ parents who got admitted the petitioner to the maternity home and specifically when questioned, he stated that he cannot find any admission card duly signed as husband for any emergency at the time of delivery which shows his negligent attitude. He also admitted that he had not signed any of the admission papers at the time of second delivery also. He made allegation in his counter that the petitioner volunteered herself for night shifts on her own and contradictory to the same, he admits in his cross-examination that it is the company’s choice to alter the shifts. He also admitted that he had never contributed anything towards the creedal ceremony performed at the petitioner’s parents house at Pune. His evidence further reads that he does not remember the fees structure of the schools of his daughter at Pune, and also in Delhi Public School. Though the respondent admits that he sometimes paid the school fee, he did not produce any receipts for the same. The respondent also admits the fact that he does not remember when the petitioner conceived for the second child, which shows his negligence conduct of not being bothered of the petitioner’s health. At one juncture he denies that the first and second delivery expenses were born out by the petitioner’s parents and immediately he admits that the medical bills were incurred by the company in which the petitioner was working. He also admitted that he never volunteered himself to pay the medical bills nor his father or step mother provided any assistance for the said expenses. He stated that the petitioner opted for night shifts and contradictorily admits that the petitioner herself applied to shift her to day duties. He also made serous allegation that the petitioner was never interested in sex. Whereas the petitioner specifically stated in her cross-examination that she was forced in such situation irrespective of her inconvenience. He admitted in his cross-examination that “the respondent requested her to have sex, but the petitioner stated that it is useless to have sex with the respondent rather than she would have preferred to have sex with her close society friends husband.” The suspicious conduct of the respondent is established by the fact that he checked all the e-mails of the petitioner which she shared through a common account and made allegations attributing intimacy with some other persons. Furthermore, when a suggestion was made to the respondent if he has love and affection for the children and if he has made any deposits for the children, he admitted that he has never made any such deposits in their favour.
24. It is very important to note that the respondent admitted tat he has not made any attempt for restitution of conjugal rights or filed any petition for the same against the petitioner. Furthermore, when a specific suggestion was given to the respondent as to the amounts received from the petitioner’s father, he admitted that he had received Rs.3,48,000/- from the petitioner’s father during the period from 15-07-2004 to 04-10-2007.
25. Apart from the above, the respondent was also making imputations against his wife i.e., petitioner that she was making friendship with one Arun Mani and she was sending e-mails to him daily, which amounts to character assassination. It is the case of the petitioner, as stated above, that from the beginning the respondent entertained suspicion about her conduct and was closely watching her movements.
26. At this juncture, it would be appropriate if a reference is made to the provision of Section 13(1)(ia) of the Act and to the proposition of law laid down by the Supreme Court and various High Courts, which reads as follows:
“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;”
27. 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.”
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. In SAMAR GHOSH 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.”
34. In the light of the above proposition of law, we may now examine whether the conduct of the respondent towards the petitioner comes under the definition of ‘cruelty’ under Section 13(1)(ia) of the Act.
35. In the instant case, the allegation is that the respondent from the beginning was suspecting the movements of the petitioner and it is also made out in the evidence of the petitioner that the conduct of the respondent was also observed by the neighbours and friends on that score. Though the respondent stated in his evidence that he has love and affection towards the petitioner, the clear recitals in the chief affidavit reads that he entertained a doubt against the conduct of the petitioner. His statement in the chief affidavit clearly reads his mind and his thinking about the conduct of the petitioner. As seen from the averments, it is asserted by the respondent that the petitioner is not having interest with him from the beginning and the e-mails sent by her shows that she was in touch with one Arun Mani daily without his knowledge and after she joined at Pune, she stopped communicating normally with him, and even after he shifted to Hyderabad, her behaviour changed and when he found the e-mails, he has told her that it is not good for a married woman to send such e-mails to third person, but he recently came to know that she was in touch with the said person through face book etc. This assertion by the respondent made the petitioner to become hostile towards him. Even according to the evidence of the respondent he learnt about the e-mails from 23-07-2002. If that be the case, he started suspecting the conduct of the petitioner from 2002 onwards. There is a time gap of nearly seven years between the said e-mails and the present petition for divorce. One can visualise the feelings of the spouses from 2002 till the O.P. is filed. When there is a suspicion between the spouses in particular touching their conduct, it is very difficult for the spouses to lead a marital life affectionately or intimately. Love, affection and confidence of the spouses are of paramount importance for happy marital life. In the present case on hand, the respondent, though expressed his love and affection towards the petitioner, was suspecting her movements which amounts to breach of confidence, which is one of the paramount ingredients for breaking the marital relationship between the parties.
36. Having knew the alleged e-mails sent by the petitioner to one Arun Mani, the respondent lead marital life with the petitioner. We can say that the said marital life lead by the respondent with the petitioner was in suspicion, and that might be the root cause for the strained feelings between them. When there is a doubt of integrity of character by the spouse
vice-versa, no conjugal life will be smooth and happy. As the petitioner felt embarrassed about the suspicious conduct of her husband, waited all through and filed the petition for divorce on the ground of cruelty. The instances narrated by the petitioner in her chief examination, which were not rebutted by the respondent, and the admission of the respondent in his evidence, moreover in the chief affidavit filed by him coupled with the bunch of e-mails marked as Ex.B-4, shows the cruel conduct of the respondent towards the petitioner.
37. The respondent himself questioned the conduct of the petitioner in his chief affidavit by filing bunch of e-mails marked as Ex.B-4. If the respondent is very much affectionate towards the petitioner, he would have filed a petition for restitution of conjugal rights, but the same is not filed. Furthermore, in view of the e-mails of the years 2002 and 2003, when the respondent started suspecting the conduct of the petitioner from the year 2002, it cannot be said that he is still interested to lead marital life with the petitioner, and his plea that he is interested with the petitioner is only a lame excuse. His offer to live with the petitioner at this hour is for the reasons best known to him.
38. In the background of the case on hand, defaming the woman’s modesty by making serious allegations as a counterblast to the petition filed by her throws light of the respondent’s suspecting nature towards his wife. The petitioner has given sufficient proof and evidence against the cruel behaviour, suspicious nature, mental and physical torture meted out by her in the hands of the respondent, and she has established that the respondent treated her with cruelty and as such the petitioner is entitled to the decree of divorce in the given circumstances.
39. Therefore, in view of the aforesaid discussion, the arguments advanced by the learned counsel for the respondent-husband holds no water and the decisions relied on by him are not applicable to the facts of the case on hand.
40. In view of the evidence of PW-1 coupled with the allegations made by the respondent basing on Ex.B-4, the petitioner cannot be reasonably expected to live with the respondent. 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.
41. In the result, the Family Court Appeal is allowed. The impugned order, dated 08-02-2011 in O.P.No.278 of 2009 is set aside. Consequently, O.P.No.278 of 2009 is allowed dissolving the marriage between the petitioner and the respondent and by granting divorce. The petitioner and her children are at liberty to take appropriate steps for permanent alimony, if any, if they are otherwise entitled. No costs.
42. This Court earlier in its order, dated 05-08-2011 in F.C.A.M.P.No.354 of 2011, made an arrangement for custody of the children for a period of three months, and it was not extended thereafter. Therefore, since the said order is not subsisting by the date of filing F.C.A.M.P.No.545 of 2011 for appointment of the lady Advocate Commissioner to implement the said order, we see no grounds to allow the petition. Hence, F.C.A.M.P.No.545 of 2011 is dismissed. No costs.