S.K. Sahoo JUDGMENT
S.K. Sahoo, J.
"Aja Yudhhe Muni Sraddhe
Prabhate Megha Dumbare
Dampatya Kalahechaiva
Bahvarambhe Laghu Kriya"
-Chanakya
(Fighting of the goats, shraddha ceremony performed by the sages, rumbling of the clouds early in the morning and quarrel between husband and wife; all begin in a grand style but the outcome is insignificant.)
1. This case depicts the tormentous life of a couple who started quarreling with each other on day two of their marriage with disagreement which gradually led to confrontation. They did not function like the two wings of the same bird for which their marital life never got off the ground. They fought with each other tooth and nail forgetting all the promises taken around sacred fire. There remained no love and respect to each other and finally, it is the collapse of their nuptial tie.
2. Asutosh Sarangi (hereafter 'the petitioner-husband') filed a petition under section 13(1)(i-a)(iii) of the Hindu Marriage Act, 1955 on 16.9.2009 in the Court of the learned Civil Judge (Senior Division), Bhubaneswar which was registered as MAT. Case No. 1106 of 2009 against Mrs. Reeta Dhara (hereafter 'the respondent-wife') with a prayer for a decree of dissolution of marriage solemnized between the parties on 8th May 2008 and in the alternative for a decree of judicial separation. The case was transferred to the learned Judge, Family Court, Bhubaneswar and accordingly it was re-registered as Civil Proceeding No. 41 of 2011.
The learned trial Judge vide impugned judgment and order dated 25.9.2014 allowed the petition filed by the petitioner-husband and passed a decree of divorce declaring the marriage between the petitioner-husband and the respondent-wife dissolved with effect from the date of decree and further directing the petitioner-husband to pay permanent alimony of Rs. 30,00,000/- (thirty lakhs) to the respondent-wife.
3. The petitioner-husband filed appeal under section 19 of the Family Courts Act, 1984 vide MATA No. 122 of 2014 challenging the quantum of permanent alimony as fixed by the learned trial Judge in the impugned judgment and order dated 25.9.2014 with a prayer to reduce the amount.
The respondent-wife on the other hand filed appeal under section 19 of the Family Courts Act, 1984 vide MATA No. 126 of 2014 to set aside the impugned judgment and order dated 25.9.2014 passed by the learned trial Judge.
Since both the appeals arise out of a common judgment and there is commonality of parties, the dispute as well as question of law in both these cases, with the consent of the parties, the appeals were heard analogously and the same are being disposed of by this common judgment.
4. In a nutshell, it is the case of the petitioner-husband that he is a defence personnel working as Executive Officer in Indian Naval Ship at Mumbai and his marriage with the respondent-wife was solemnized on 8th May 2008 at Hotel Presidency, Bhubaneswar as per Hindu rites and custom. On the very next day of the marriage i.e. on 9th May 2008, the respondent-wife forced the petitioner-husband twice to consummate the marriage which was not possible as the parents and relations were present in the house. Since the petitioner-husband refrained himself from the persuasions of the respondent-wife, she became furious and behaved with her husband in a very discourteous manner. When the petitioner-husband asked the respondent-wife about the reasons for her abnormal behaviour, she replied that she wanted a child immediately so that she would establish her legal rights. The respondent-wife insulted the petitioner-husband before others saying that the petitioner-husband was an impotent person and require medical checkup which caused humiliation to the petitioner-husband. Though on subsequent occasions, there was sexual intercourse between the parties but the respondent-wife was not satisfied and she always wanted vigorous sex which was avoided by the petitioner-husband. The abnormal, violent and aggressive behaviour of the respondent-wife came to the knowledge of the neighbours. Within a few days of marriage, the respondent-wife threatened to commit suicide which caused panic to the petitioner-husband and he became perturbed. The respondent-wife brought false allegations against her mother-in-law that she was always watching T.V. and not helping her in the household work.
It is the further case of the petitioner-husband that towards the end of May 2008, he went to Vishakhapatnam to rejoin his service after marriage. In his absence, the respondent-wife started torturing her mother-in-law and went to her father's place. When her mother-in-law wanted to accompany her, she refused her mother-in-law's entry to her parents' house which caused mental shock to the petitioner-husband. During the month of June 2008, the respondent-wife brought false allegations of illicit relationship and extra-marital affairs against the petitioner-husband while the later was staying at Vizag. The respondent-wife also disturbed the petitioner-husband over telephone during his working hours. Even though there was no allotment of quarters, the respondent-wife, her mother and brother were staying in a Defence Guest House. When the petitioner-husband questioned about such conduct, he was threatened by the entire family of the respondent-wife that they had link with Maoists and they were capable of causing grievous harm to his entire family. The petitioner-husband became afraid with such unusual behaviour of the respondent-wife as his mother was staying alone at Bhubaneswar. The petitioner-husband got a quarter and the respondent-wife stayed with him but made his life miserable. When the petitioner-husband came back from sailing on 30th September 2008, he came to know that the respondent-wife was attending various functions without his knowledge and approval and when he dissuaded her not to repeat such activities, she behaved in a very arrogant manner.
It is the further case of the petitioner-husband that the respondent-wife was always threatening him that she would get his promotion stopped. She also brought frivolous and scandalous allegations against the petitioner-husband and even tried to spoil his service career. The respondent-wife behaved like a schizophrenic patient and having an incurable and unsound mind. On 12/13th May 2009 when the sister of the petitioner-husband had come to Kochi to visit him for the first time, the respondent-wife assaulted her and tried to drive her away claiming that the house stands in her name. She was allowing unwanted and unknown strangers to the house in the absence of the petitioner-husband. In June 2009, the petitioner-husband was transferred to Mumbai. Prior to his transfer, the Commanding Officer of the petitioner-husband told him that the respondent-wife and her mother complained before him to stop his further promotion. The respondent-wife was an ill-tempered and quarrelsome woman and there was no sexual relationship between the couple since May 2008. She was getting pleasure in humiliating her husband in public.
According to the petitioner-husband, it was no longer possible to lead a conjugal life with the respondent-wife and as the marriage between the parties had been irretrievably broken down and reconciliation was not possible, prayer was made for dissolution of marital tie.
5. The respondent-wife appeared in the case and filed her written statement along with counter claim for restitution of conjugal rights, maintenance and other consequential reliefs. The respondent-wife denied all the averments taken by the petitioner-husband in the petition for divorce.
In a nutshell, it is stated in her written statement that there was demand of dowry by the petitioner-husband and his family members before marriage which gradually increased after the marriage. On the next day of marriage, her mother-in-law criticized the dowry items which were brought by her. The petitioner-husband demanded a car which was assured to be given on the Astamangala day when the couple would visit the house of the respondent-wife as per tradition. When a Car was purchased in the name of the respondent-wife and it was hypothecated to HDFC Bank, the father of petitioner-husband contacted the parents of the respondent-wife over telephone and asked them to pay the car loan immediately and cancel the hypothecation and transfer the car in the name of the petitioner-husband.
It is the further case of the respondent-wife that the petitioner-husband avoided keeping physical relationship with her and even though she was doing all the household works without any support of her in-laws but she was not provided with hygienic food and diet. Sometimes her mother-in-law was also assaulting her. The mother-in-law of the respondent-wife was suffering from tuberculosis but she used to give her left out food to the respondent-wife. The respondent-wife was criticized as a rural girl having no proper qualification by her in-laws' family members. She further stated in her written statement that the petitioner-husband is a self-centered and egoistic person and an instinctive liar who always tried his best to irritate the respondent-wife and blackmail her with a motive to extort further dowry. She also stated to have heard about the adulterous relationship of the petitioner-husband. She stated that she was threatened by her husband that if she would leave him, he would marry on the next day. She raised the counter claim for a direction to the petitioner-husband not to torture her or indifferently treat her to extort dowry and to lead a normal life with her and to maintain her according to his status.
6. The learned trial Judge framed the following issues:--
"(i) Whether the respondent-wife treated the petitioner-husband with cruelty?
(ii) Whether the petitioner-husband is entitled to the relief of dissolution of marriage as sought for in the plaint?
(iii) Whether the respondent-wife is entitled to restitution of her conjugal rights with the petitioner-husband?
(iv) Whether the respondent-wife is entitled to get permanent alimony or monthly maintenance from the petitioner-husband and what would be the quantum thereof?"
7. In order to prove his case, the petitioner-husband examined himself as P.W.1, his mother Pratima Sarangi as P.W.2, his maternal uncle Ashok Kumar Dash as P.W.3, his sister Alpana Sarangi as P.W.4 and one Dr. Lobsang Dondup as P.W.5.
The petitioner-husband also relied upon some documents to substantiate his case. Ext. 1 is a letter dated 16.5.2009 issued by the petitioner-husband to the Administrative Officer requesting to restrict the access of unknown and unwanted strangers to his residence, Ext. 2 is a letter dated 16.5.2009 of the petitioner-husband to the authority to disconnect unauthorized air conditioner in his quarters, Ext. 3 is the letter issued by the Commander, Command Quartering Officer to the Director INTEG regarding illegal retention of Govt. accommodation, Ext. 4 is the letter issued by Commander, Command Quartering Officer to the petitioner-husband regarding illegal occupation of the house, Ext. 5 is the letter of penalty imposed for illegal retention of the quarter, Ext. 6 is the letter dated 28.7.2011 to the petitioner-husband for eviction of the quarter, Ext. 7 is the letter dated 2.9.2011 issued by the Captain, Command (Admn. & Personnel) Officer regarding taking over of accommodation occupied by the spouse of the petitioner-husband, Ext. 8 is the show cause notice issued by the Commander, Joint Director for recovery of maintenance allowance, Ext. 9 is the letter issued to respondent-wife by the Commanding Officer to furnish bank particulars, Ext. 10 is the letter dated 11.6.2010 issued by the Commander, Director (AOL) to the Secretary, IMSC for approval for delayed payment of IMSC bills, Ext. 11 is the letter dated 11.6.2010 issued by the Commander, Director (AOL) to the Mess Secretary Western Naval Command Officers' Mess for approval for delayed payment of mess bills by the petitioner, Ext. 12 is the letter dated 4.2.2010 of the respondent-wife for recovery of maintenance of Rs. 25,000/-, Ext. 13 is the office copy of the letter dated 16.2.2010 issued by respondent-wife to the Director, INTEG requesting to retain the transit house, Ext. 14 to 14/e are the applications of the respondent-wife under RTI Act to obtain the monthly salary and other allowance of the petitioner-husband, Ext. 15 is the application of the petitioner-husband dated 23.1.2013 to the Commanding Officer for supply of documents and Ext. 16 is the forwarding of documents by the Captain, Commander Officer M. Gobardhan Raju.
8. The respondent-wife examined herself as R.W.1 and she also proved certain documents in support of her case. Ext. A is the registration certificate of the car bearing Registration No. OR-02-AT-0440, Ext. B is the money receipt of godrej almirah, Ext. C is the money receipt of A.C., Ext. D is the transport packing voucher from Kochi to Mumbai and Ext. E is the letter of the respondent-wife dated 24.1.2011 to the Director, INTEG showing her interest to reside together with the petitioner-husband.
9. The learned trial Judge, Family Court vide impugned judgment and order dated 25.9.2014 while answering issue Nos. (i), (ii) and (iii) held that from the evidences of P.Ws. 1 to 5, it is crystal clear that the respondent-wife treated the petitioner-husband with cruelty and for that reason, the petitioner-husband suffered from mental agony. The respondent-wife withdrew herself from the society of the petitioner-husband without any justifiable cause. The petitioner-husband tried his best to reconcile the matter but the respondent-wife did not cooperate. The learned trial Judge further held that making scandalous and frivolous allegations, retention of quarters unauthorizedly by the respondent-wife, not to be respectful to the family members of the petitioner-husband and making complaints before the superior officers of the petitioner-husband, unfounded allegations of extra-marital relationship of the petitioner-husband with some girls are the circumstances attracting mental cruelty and such cruelty being weighty and grave, it is impossible for the petitioner-husband to live with the respondent-wife. The learned trial Judge further held that the marriage was dead both emotionally and practically. Once serious allegation has been made against the petitioner-husband, it becomes clear that there is no chance of parties coming together or living together especially when the respondent-wife put forward an allegation against the petitioner-husband that he was having undesirable association with the girls and accordingly the learned trial Judge opined it to be a fit case to snap out the marriage ties between the parties lest it would lead to torturous litigation and continued agony resulting mental cruelty.
So far as issue No. (iv) is concerned, the learned trial Judge taking into account the avocation of the petitioner-husband and the life expectancy of a person, fixed the permanent alimony at Rs. 30,00,000/- (thirty lakhs).
10. During pendency of the appeal before this Court, we had a long deliberation with the petitioner-husband and the respondent-wife on 16.2.2015 in chambers and we impressed upon both the parties to live together for two days and posted the matter on 19.2.2015 and directed both the spouses to appear in person before us along with their counsels on that day. On 19.2.2015 we found with a sense of anguish that all our efforts to reunite the spouses yielded no fruitful result and accordingly we closed the chapter of making efforts of reuniting the spouses and directed for hearing the matter on merits.
11. Mr. Surya Prasad Misra, Senior Advocate, the learned counsel for the respondent-wife being ably assisted by Miss Deepanwita Priyanka assailing the impugned judgment and castigating the findings recorded by the learned trial Judge submitted that the approach of the learned trial Judge to decide the issues involved in the case is one-sided and the case of the wife has not at all been considered. It is urged that there is insufficient evidence to substantiate the plea of cruelty taken by the petitioner-husband and the learned trial Judge has given undue weight upon the depositions of highly interested witnesses of the petitioner-husband who has failed to produce any independent witnesses to corroborate the allegations of mental cruelty against the respondent-wife. It is further contended that the petitioner-husband has miserably failed to substantiate his allegation that the respondent-wife was suffering from schizophrenia and that her behaviour was usually aggressive, erratic and abnormal either by any oral or documentary evidence. Mr. Misra further urged that irretrievable breakdown of the marriage is not provided by the legislature for granting a decree of divorce and the findings that the marriage was emotionally and practically dead is not borne out of record as the respondent-wife was consistently desiring to rejoin her husband and to live with him normally in a matrimonial relationship once again. While concluding his argument, it was emphasized that no Indian girl want to die as a widow and the respondent-wife should be treated with dignity and should not be deprived of leading a physically and emotionally satisfying conjugal life of comfort with her husband.
12. Rebutting the contentions raised by the respondent-wife, learned counsel for the petitioner-husband Mr. Sourya Sundar Das, learned Senior Advocate submitted that there is no illegality or infirmity in the judgment and order of the learned trial Judge in passing a decree of divorce and dissolving the marriage between the petitioner-husband and respondent-wife particularly when it is clearly borne out of the record that the respondent-wife treated the petitioner-husband with cruelty for which the petitioner-husband suffered from mental agony and particularly when the respondent-wife had withdrawn herself from the society of petitioner-husband without justifiable cause. He further contended, while challenging the quantum of permanent alimony, that, during pendency of the proceeding before the learned trial Judge, the respondent-wife had received a sum of Rs. 7,34,000/- towards the interim maintenance paid up to July 2014 which has not been considered by the learned trial Judge while quantifying the permanent alimony at Rs. 30 lakhs. The learned counsel further submitted that though a demand draft of Rs. 14,000/- in the name of respondent-wife was prepared and that was offered to her but the same was not accepted. It is further submitted that the petitioner-husband is at present serving as Executive Officer in Indian Navy and his basic salary is Rs. 41,630/- and his total gross salary including D.A. and other allowances comes to Rs. 97,860/- but his home take salary after deduction is Rs. 63,072/-. The learned counsel further urged that the failure of the trial Judge to take note of the paying capacity of the petitioner-husband while awarding such a huge amount towards permanent alimony reflects the whimsical and injudicious determination which is liable to be interfered with. The learned counsel further urged that the respondent-wife has huge parental properties and in view of the provisions of the Hindu Succession Act, she is likely to inherit her share in the property and she is also highly educated and completed MCA from G.M. College, Sambalpur and therefore she has capacity to earn. The learned counsel while concluding his argument submitted that the liability and responsibility of the petitioner- husband has not been taken note of and by directing to pay such a huge amount, it would bankrupt the petitioner.
13. Before adverting to analyse the argument and counter argument raised by the respective parties, certain undisputed facts need to be taken note of. Such facts are as follows:--
"(i) The marriage between the parties was solemnized on 8.5.2008 at Bhubaneswar in accordance with Hindu rites and customs and no children were born out of the wedlock.
(ii) The petitioner-husband is serving as an Executive Officer in Indian Navy.
(iii) The petitioner-husband and the respondent-wife were living separately since mid year 2009."
14. Assessing the contentions raised by the learned counsel for the respondent-wife that the learned trial Judge approached the issues in an one-sided manner and the case of the respondent-wife had not been considered at all, we scrutinized the judgment with eagle eyes and found that in paragraph-4 of the judgment, the learned trial judge has taken note of the pleadings of the respondent in her written statement as well as her counter claim, in paragraph-6 of the judgment, the learned trial Judge has taken note of the examination of the respondent-wife as a witness from her side as well as the documents proved on her behalf. In paragraph-7 of the judgment the learned trial Judge has held as follows:--
".........The respondent in her evidence as well as in her written statement alleged that the petitioner had extra-marital relations with some girls, which were unfounded allegations as she could not say the name of the girls with whom the petitioner had kept such relation......"
x x x x x
".........There is no shred of evidence from the side of the respondent what were the kind of additional demand and the amount, if any....."
In paragraph-12 of the judgment, the learned trial Judge has held as follows:--
".........On the other hand, the sole testimony of the respondent is nothing but denial of the aforesaid facts let into in evidence by the petitioner and his witnesses. The respondent even failed to examine her mother who was all along with her at the service place of the petitioner to support her testimony."
In paragraph-13 of the judgment, the learned trial Judge has held as follows:--
".........Similarly, the respondent did not talk with the petitioner.....Additionally, once serious allegation has been made against the petitioner, it becomes clear that there is no chance of parties coming together or living together especially, when the wife put forward an allegation against husband that he was having undesirable association with girls......"
Perusing the judgment and analysis of the evidence by the learned trial Judge, we are not inclined to accept the contentions raised by the learned counsel for the respondent-wife that the approach of the learned trial Judge was one-sided and the wife's case was not considered at all rather it is apparent that the cases of both the sides have been given due weight and there has been thorough analysis of the evidence on record.
15. Coming to the further contentions raised by the learned counsel for the respondent-wife that there is insufficient evidence to substantiate the plea of cruelty taken by the petitioner-husband, we found that not only the petitioner-husband but also the witnesses examined on his behalf and the documentary evidence proved from his side clearly makes out a case of cruelty.
The evidence of the petitioner- husband as P.W.1 gets corroboration from the other witnesses examined on his behalf. Nothing substantial has been elicited in the cross-examination to discredit their versions. The petitioner-husband has successfully established as to how on different occasions he was subjected to cruelty by the respondent-wife and how his attempt to change her attitude yielded no fruitful result. We are of the view that the conduct of the respondent-wife making baseless but scandalous allegations against the petitioner-husband that he had extramarital relationship with some girls, not showing due respect to the in-laws, retaining the Govt. allotted quarters unauthorizedly and making false complaints against the petitioner-husband before his superior officers comes within the circumscription of "mental cruelty". When serious allegations against the character of the petitioner-husband was made and the respondent-wife utterly failed to substantiate the same and her conduct from time to time became very painful to the petitioner-husband, the learned trial Judge was right in holding that the conduct of the respondent-wife amounted to cruelty which was 'grave and weighty' for the petitioner-husband to live in the company of the respondent-wife. Looking at the allegations and counter allegations, assessing the evidence available on record carefully and minutely and also taking note of the conduct of the parties during pendency of the proceeding, we are of the view that the learned trial Judge was justified in holding that not only the respondent-wife treated the petitioner with cruelty but also withdrew herself from the society of the petitioner-husband without justifiable cause. We are also of the view that the learned trial Judge has rightly held that the marriage between the parties is dead, both emotionally and practically and it is a fit case to snap out the marriage between the parties and allowing them to live together would be injurious and harmful to both of them.
The contentions raised by the learned counsel for the respondent-wife regarding examination of only interested witnesses on behalf of the petitioner-husband, we are of the view that in a case of matrimonial dispute, the family members of the parties are the best witnesses because they are acquainted with their day to day twigs and wrangles. Apart from examining his family members, the petitioner-husband has also examined Dr. Lobsang Dondup as P.W.5 who was posted in July 2008 on INS, Krishna at Naval Base, Kochi, where the petitioner-husband was working, in the same unit and he has also stated about the misconduct of the respondent-wife as well as her cruel behaviour to the petitioner-husband. The contentions were raised by the learned counsel for the respondent-wife that there is absence of any documentary evidence to show that she was a schizophrenia patient and therefore the allegations should be disbelieved. The petitioner-husband being examined as P.W.1 has stated that he had consulted a psychiatrist at Kochi due to the abnormal behaviour of the respondent-wife and the doctor suggested that there are three possibilities likely to be affecting her i.e. (i) personality disorder (ii) mental disorder (iii) plain criminal intent to defame and discredit him in his circle. He has further stated that he attempted to take the respondent- wife to the doctor but she refused and instead she became more violent. Thus when the respondent-wife did not visit the doctor in spite of the persuasion of the petitioner-husband, there cannot be any documentary evidence regarding his mental ailment. After going through the evidence adduced by the parties, it appears that the respondent-wife frequently insulted and harassed the petitioner-husband on different occasions, behaved with him in a furious and aggressive manner, brought false allegations of illicit relationship and extra marital affairs against her husband, showed disrespect to the in-laws' family members, brought complaints against her husband before the Commander-in-Chief and Naval Wives Welfare Association jeopardizing the prestige and dignity of her husband. Such persistent conduct of the respondent-wife in defaming, demoralizing and disheartening the petitioner-husband, according to our humble view, definitely attracts mental cruelty which has also been rightly held so by the learned trial Judge.
16. Section 13(1)(i-a) of the 1955 Act states that any marriage solemnized can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party after solemnization of marriage had treated the petitioner with cruelty.
The expression 'cruelty' has not been defined under Section 13 of the 1955 Act, though the expression 'desertion' has been defined as desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party which also includes the willful neglect of the petitioner by the other party to the marriage.
So far as 'cruelty' as indicated under Section 13(1)(i-a) of the 1955 Act is concerned, law is well settled that the cruelty may be physical or mental or both. The expression 'cruelty' has got an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. The burden of proof lies on the aggrieved party to make out a case of cruelty. The act of cruelty must be such which would cause reasonable apprehension in the mind of the aggrieved party that it would be harmful or injurious on his part to live with the other party. A particular conduct which may amount to cruelty in one case may not necessarily amount to cruelty in the other case due to change of various factors and different set of circumstances.
In case of Sujata Uday Patil v. Uday Madhukar Patil reported in MANU/SC/0033/2007 : (2006) 13 Supreme Court Cases 272, it is held as follows:--
"7. The word "cruelty" and the kind or degree of "cruelty" necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the Court in these kind of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty."
In the case of Naveen Kohli v. Neelu Kohli reported in MANU/SC/1387/2006 : AIR 2006 SC 1675, it is held as follows:--
"66. 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. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
67. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's 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 the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or nonviolent."
In the case of Samar Ghosh v. Jaya Ghosh reported in MANU/SC/1386/2007 : (2007) 4 Supreme Court Cases 511, it is held as follows:--
"99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(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."
In the case of Gurbux Singh v. Harminder Kaur reported in MANU/SC/0829/2010 : AIR 2011 SC 114, it is held as follows:--
"11. A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified therein. We have already pointed out that in the petition for dissolution of marriage, the appellant has merely mentioned Section 13 of the Act and in the body of the petition he highlighted certain instances amounting to cruelty by the respondent-wife. Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in different set of circumstances. Therefore, it is essential for the appellant, who claims relief, to prove that a particular/part of conduct or behaviour resulted in cruelty to him. No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that a particular conduct will, under all circumstances, amount to cruelty, vis-à-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty. It is true that even a single act of violence which is of grievous and inexcusable nature satisfies the test of cruelty. Persistence in inordinate sexual demands or malpractices by either spouse can be cruelty if it injures the other spouse. There is no such complaint by the appellant. In the case on hand, as stated earlier, the appellant has projected few instances in which, according to him, the respondent abused his parents. We have verified all the averments in the petitions, reply statement, written submissions as well as the evidence of both parties. We are satisfied that on the basis of such instances, marriage cannot be dissolved.
12. The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty....."
In the case of K. Srinivas Rao v. D.A. Deepa reported in MANU/SC/0180/2013 : AIR 2013 SC 2176, it is held as follows:--
"14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse."
In the case of Malathi Ravi v. B.V. Ravi reported in MANU/SC/0578/2014 : AIR 2014 SC 2881, it is held as follows:--
"37. ......Mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be a mental cruelty in the life of two individuals belonging to particular strata of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances......"
In the case of Ramchander v. Ananta reported in MANU/SC/0202/2015 : 2015 (2) SCALE 634, it is held as follows:--
"10. The expression 'cruelty' has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case, there is no allegation of physical cruelty alleged by the Plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the Plaintiff has been subjected to mental cruelty due to conduct of the other spouse."
17. After going through the pleadings as well as evidence adduced before the learned Family Judge, we found that the Family Judge has rightly approached the case from an accurate prudent angle and has come to an irrefutable finding that the respondent-wife treated the petitioner husband with cruelty for which the petitioner husband suffered from mental agony and that the respondent-wife withdrew herself from the society of the petitioner husband without any justifiable cause.
We are also of the view that from the materials available on records, the learned trial Judge has rightly come to the conclusion that making scandalous and frivolous allegations, retention of quarters unauthorizedly by the respondent-wife, not to be respectful to the family members of the petitioner-husband, making false complaints before the higher authority of the petitioner, bringing unfounded allegations of extra-marital relation of the petitioner-husband with some girls, all are the circumstances individually and collectively, attracting mental cruelty and such cruelty are so weighty and grave that it was impossible for the petitioner-husband to lead a normal marital life.
We are also of the view that the learned trial Judge was right in holding that the marriage between the parties is dead both emotionally and practically and there is no chance of parties coming together or living together and that it is a fit case to snap out the marriage between the parties lest it would lead to tortuous litigation and continued agony to both.
In the ultimate analysis, we hold that the respondent-wife has treated the petitioner-husband with cruelty and the marriage between the parties has been irretrievably broken down. We are of the view that dissolution of marriage will relieve both sides of pain and anguish. In this Court, the respondent-wife expressed that she wants to go back to the petitioner-husband, but, that is not possible now. The petitioner-husband is not willing to take her back. Even if we refuse to confirm the decree of divorce to the petitioner-husband, there are hardly any chances of the respondent-wife leading a happy marital life with the petitioner-husband because a lot of bitterness has been created by the conduct of the respondent-wife.
Therefore, in our humble view, the conclusions arrived at by the learned trial Judge clearly rests on proper appreciation of facts and, hence, we concur with the same and hold that the petitioner-husband has been rightly granted divorce by the learned Family Judge.
Accordingly, the decree of divorce between the petitioner-husband and the respondent-wife and dissolution of their marriage as was granted by the learned Judge, Family Court, Bhubaneswar in Civil Proceeding No. 41 of 2011 is hereby affirmed.
18. Adverting our attention to the proper determination of the quantum of permanent alimony, it is noted that section 25 of Hindu Marriage Act which deals with permanent alimony and maintenance encompasses within the expression 'Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto', to grant alimony or maintenance in all kinds of decrees such as restitution of conjugal rights under section 9, judicial separation under section 10, declaring marriage as null and void under section 11, annulment of marriage as voidable under section 12 and divorce under section 13.
The learned trial Judge while determining the quantum of permanent alimony and fixing it at Rs. 30 lakhs has observed as follows:--
"(i) The petitioner is a Naval Officer and respondent is a house wife who is aged about 33 years and there is no more chance of her remarriage.
(ii) The life expectancy of a person is 60 years now-a-days. The petitioner would go on paying Rs. 14,000/- to the respondent towards monthly interim maintenance amount till she attends the age of 60 years.
(iii) The petitioner being the husband has to support his wife until her death or remarriage or otherwise disqualified under the statute."
We are of the considered view that there is no proper discussion by the learned trial Judge while fixing such an exorbitant amount towards the permanent alimony. The age of the petitioner-husband as well as remaining period of his service till the age of superannuation has not been considered. It is also baffling as to how the learned trial Judge came to hold that after snapping out the marital relationship between the parties, there would be no more chance of remarriage of the respondent-wife. The learned trial Judge is also not correct in observing the life expectancy of a person is 60 years now-a-days. Statistics released by the Union Ministry of Health and Family welfare which was published in the Times of India dated 29.1.2014 shows that life expectancy in India has gone up by five years, from 62.3 years for males and 63.9 years for females in 2001-2005 to 67.3 years and 69.6 years respectively in 2011-2015. Experts attribute this jump is due to better immunization and nutrition, coupled with prevention and treatment of infectious diseases. Retirement age of Navy staff from the post of Lt. Commander to Admiral ranges in between 52 years to 62 years. The petitioner-husband is at present aged about 39 years.
Scanning the pleadings and evidence adduced by both the parties before the learned trial Judge, we find that neither the petitioner-husband nor the respondent-wife had brought any material regarding the income of the petitioner from different sources and their liabilities etc. There is no challenge to the quantum of permanent alimony by the respondent-wife as has been fixed by the learned trial Judge. The grievance of the learned counsel for the petitioner-husband that the respondent-wife has received Rs. 7,34,000/- towards the interim maintenance paid up to July 2014 which has not been considered by the learned trial Judge while quantifying the permanent alimony at Rs. 30 lakhs. It is further contended by the learned counsel for the petitioner-husband that the petitioner-husband is at present serving as Executive Officer in Indian Navy and his net salary is Rs. 63,072/- and keeping in view his future service prospects so also the share which the respondent-wife would get from her parental properties and her capacity to earn in future as she is a highly educated lady and the liabilities and responsibilities of the petitioner-husband, the quantum of permanent alimony should be determined.
19. Determination of quantum of permanent alimony to be paid so that the entitled spouse lives a dignified life according to the standard of the other side is an upheaval and arduous task. Length of marriage, time since the spouses are living separately, age of the parties, relative income of both the spouses, financial prospects of the parties, health of the parties and fault in breaking down of the marriage are some of the factors which can be kept in mind while fixing the permanent alimony.
In case of U. Sree Vrs. U. Srinivas reported in MANU/SC/1086/2012 : AIR 2013 SC 415, the Hon'ble Supreme Court held that it is duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune.
In case of Vinny Parmvir Parmar Vrs. Parmvir Parmar reported in MANU/SC/0842/2011 : AIR 2011 SC 2748, it is held as follows:--
"12. As per Section 25 of Hindu Marriage Act, while considering the claim for permanent alimony and maintenance of either spouse, the respondent's own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the Court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles, courts have to be kept in mind while determining maintenance or permanent alimony."
In case of Dipak Bash Vrs. Smitarani Bash which both of us disposed of on 16.03.2015 in connection with MATA Nos. 14 & 26 of 2013, my esteemed brother Hon'ble Justice Vinod Prasad has held as follows:--
"19. Alimony is no alms. It is entitlement of a wife for a decent living. All relevant factors affecting fiscal expenses have to be considered. It is not the home take salary alone which is of significance. Capacity to earn and actual earning has also to be reckoned with. Savings made by the husband for securing his future life is also significant and has to be counted while determining the amount of alimony. Wife does not require only two morsels a day but she requires a reasonable amount to meet all her basic needs for a life which she would have enjoyed had the marital tie would have continued. The amount of money received at the time of marriage has also to be counted. While fixing alimony, all essential future expenses of all kinds have to be considered. The contention that take home salary of the husband is the only relevant criterion is illogical and faulty. Wife's capacity to earn after separation is also a relevant factor to be kept in mind. Similarly the responsibility which the wife would have borne had the relationship continued is also a relevant aspect to be kept in mind. Residence, future possibility of maintaining oneself alone, clothing, fooding, biological requirements of a female and many further aspects are other significant points which have to be kept in mind.........While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the social status of the parties, their respective social needs, the way of living of the spouse, the financial capacity of the husband and other obligations. It is duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune. The Courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party."
In case of Shamima Farooqui Vrs. Shahid Khan reported in MANU/SC/0380/2015 : (2015)5 Supreme Court Cases 705, it is held as follows:--
"14. ............A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one."
20. There is no oral and documentary evidence before us as to what the parental properties of the respondent-wife are and what would be her share from such properties. We are of the view that the permanent alimony should not be determined keeping in anticipation what the respondent-wife would get in future from her parental properties particularly when we have no clear data about such properties. No doubt, the respondent-wife is a highly educated lady and she has a capacity to earn in future but we cannot decide issue of alimony on preemptive suppositions. There is also no clear material before us regarding the liabilities and responsibilities of the respondent-wife. However, considering the economic status of the parties, their respective needs, the present salary of the petitioner-husband and his future service prospect, his capacity to pay and taking note of the fact that the amount of permanent alimony fixed for the wife should be such that she can live with dignity and in reasonable comfort and simultaneously it should not be excessive and affect the living condition of the husband and considering the young age of the wife and that she has to meet any kind of man-made misfortune in future, we are of the view that in the facts and circumstances of the case, a direction to the petitioner-husband to pay Rs. 25 lakhs (Rupees twenty lakhs only) as one time alimony to the respondent-wife can be said to be quite reasonable in the ends of justice.
21. Accordingly, we affirm the decree of divorce granted by the Judge, Family Court, Bhubaneswar in Civil Proceeding No. 41 of 2011 dissolving the marriage between the parties namely petitioner-husband Ashutosh Sarangi and respondent-wife Mrs. Reeta Dhara but reduce the quantum of permanent alimony from Rs. 30,00,000/- (Rupees thirty lakhs only) to Rs. 25,00,000/- (Rupees twenty five lakhs only). The petitioner-husband Ashutosh Sarangi shall pay to the respondent-wife Mrs. Reeta Dhara Rs. 25,00,000/- (Rupees twenty five lakhs only) as a lump sum amount of permanent alimony in addition to what he has already paid in different proceedings to the respondent-wife, within a period of six months from the date of this judgment failing which the respondent-wife shall be at liberty to realize the same from the petitioner-husband through due process of law. The amount that has already been paid to the respondent-wife towards interim maintenance or otherwise is to be ignored as the same had been paid by virtue of the interim orders passed by the Courts and it is not expected that the respondent-wife has sustained herself without spending the said money.
22. Before parting, we would like to say that a happy marriage can survive between two good forgivers. The sooner they understand each other, the more they would come closer to one another. Sometime it is better to be a 'blind wife' and a 'deaf husband'. Domestic quarrel, if any, should never be obtruded in the public. The couple should not forget that they have taken a pledge before the sacred fire to stand by each other till the last breath and accordingly they have a solemn responsibility to care for each other.
We would like to place on record that senior counsel Mr. Surya Prasad Misra, Miss Deepanwita Priyanka and senior counsel Mr. Sourya Sundar Das appearing for the parties have rendered valuable assistance to us.
23. With the aforesaid observation and direction, MATA No. 122 of 2014 filed by the petitioner-husband is allowed to the extent as indicated above and MATA No. 126 of 2014 filed by the respondent-wife stands dismissed. No order as to costs.
Vinod Prasad, J.
I agree.
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