Sanjay Karol JUDGMENT
Sanjay Karol, J.
1. Appellant Monika Sharma (hereinafter referred to as the wife) was wedded to respondent Kuldeep Kumar Dogra (hereinafter referred to as the husband) on 26.04.1993 as per Hindu customary rights. Two children were born out of the wedlock. Incompatibility prompted the parties to reside separately. With the passage of time discord widened with the husband filing a petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), wherein wife pleaded infidelity on the part of her husband. Unequivocally it stood averred that the husband was having illicit relationship with his Bhabhi (sister-in-law). Such allegations were also repeated in a petition filed by the wife under Section 125 Cr.P.C. Claiming the allegations to be false, having caused grave mental cruelty and the marriage having broken out irretrievably, husband filed a petition for divorce on the ground of cruelty. This in crux is the averments made in the petition adjudicated by the Court below.
2. In response thereto wife reiterated her allegations.
3. On the basis of the evidence led by the parties, trial Court decided the issues in favour of the husband and allowed the petition by passing a decree of divorce on the ground of cruelty.
4. Such judgment and decree dated 01.11.2012 passed by District Judge, Hamirpur, H.P., in HMA Petition No. 03 of 2010 titled as Kuldip Kumar Dogra Versus Smt. Monika Sharma, is subject matter of challenge before this Court.
5. This Court, made several attempts in making the parties understand the advantage and benefit of having their dispute amicably resolved. Regretfully parties could not arrive at any amicable settlement.
6. That wife levelled false allegations of infidelity stand categorically pleaded by the husband in his divorce petition. Such allegations were made in response to a petition No. 28 of 2004/RBT No. 35/05, titled as Kuldeep Kumar Dogra Versus Smt. Monika Sharma, so filed under Section 9 of the Act; petition for maintenance filed under Section 125 Cr.P.C. and in response to the petition in question, she has inter alia reiterated such allegations and pleaded cruelty through the hands of her husband.
7. Certain facts are not in dispute. Parties to the lis were married on 26.04.1993 and two children Shubham Dogra and Praful Dogra were born out of the wedlock. Since 10.01.2004 parties have been residing separately. Husband shifted to his native village Khasgran, whereas wife continued to reside with her children at Anu, District Hamirpur, H.P. On 04.03.2004, husband filed a petition under Section 9 of the Act (Ex. R-3), seeking restitution of conjugal rights, in which wife filed her response clearly pleading cruelty meted out by her husband. In fact, she categorically pleaded that disharmony inter se the parties started after she observed illicit relationship, which her husband was having with his sister-in-law (Bhabhi). In the said petition, on 18.02.2006, even on oath she made statement (Ex. P-2) to this effect. The said petition came to be dismissed vide judgment and decree dated 30.04.2008 (Ex. R-1). Appreciating the testimonies of the wife and her son as also official witnesses Pawan Kumar and Mohinder Singh, Court found that since the wife stood subjected to cruelty by her husband, who had also disconnected the electricity and telephone connections, so installed in the premises occupied by her, it was a case of constructive desertion. Appeal, so filed by the husband stood dismissed by this Court vide judgment dated 08.12.2009 in FAO (HMA) No. 303 of 2008, titled as Shri Kuldeep Kumar Dogra Versus Smt. Monika Sharma (Ex. R-4).
8. Incidentally the Court, made no observation with regard to the correctness or otherwise of the allegations of the alleged illicit relationship. Thus the issue of restitution of conjugal rights comes to an end.
9. On 28.06.2005, the wife sought maintenance by filing a petition under the provisions of Section 125 Cr.P.C., which was objected to by her husband. When she stepped into the witness box on 27.02.2007 she again deposed (Ex. P-3), that her husband was having an illicit relationship with his sister-in-law (Bhabhi). Said petition came to be allowed vide order dated 28.06.2008 (Ex. R-5). Even here the Court made no observation with regard to the correctness or otherwise of the allegations of the alleged illicit relationship.
10. Careful perusal of judgment/order passed in both the aforesaid cases would reveal that: (a) the husband had been subjecting his wife to extreme mental harassment and physical cruelty; (b) he had been physically assaulting her; (c) he had disconnected the electricity and telephone connections from the premises where the parties had been jointly residing; (d) he alone shifted and jointly started residing with his parents and brother at his native place; (e) he neglected his immediate family; (f) wife had not left the matrimonial house without any reasonable excuses or justifiable cause or had voluntarily started residing separately or withdrawn from the company of her husband; (g) wife was leading a life of an ascetic and after constructing a temple managing its affairs.
11. With the dismissal of appeal No. 303 of 2008 (Ex. R-4) by this Court, on 02.01.2010, husband filed a petition under Section 13 of the Act on the ground that after solemnization of marriage, he had been treated by his wife with cruelty.
12. In the aforesaid factual backdrop, it would be appropriate to reproduce herein under, the relevant averments made in the petition in question:--
"5. That the respondent has levelled false allegations of adultery in her reply to the petition under section 9 of Hindu Marriage Act in which the respondent has specifically made false and frivolous allegation against the petitioner that the petitioner is having illicit relations with his sister-in-law (BHABI).
6. That these allegations are totally false and there is no proof of it. Similarly, allegations were made or levelled by the respondent in petition under section 125 Cr.P.C. and also the statements of the respondent recorded as PWs in both the proceedings.
7. That these are the false allegations which amount to cruelty and the same has given reasonable apprehension in the mind of petitioner that it is not possible to live with her. Thus the respondent is guilty of cruelty."
13. Narrating past history and litigation inter se the parties, wife responded by making following averments, which stand refuted by the husband in the replication so filed by him:--
"...In fact the disharmony inter-se the parties started, when the Respondent came to observe the illicit relations between the petitioner and his sister-in-law (Bhabi) and therewith when the Respondent took strong exception to their illicit relationship, the petitioner became crazy and resultantly he started abusing, humiliating and maltreating the Respondent and even started giving beatings and thrashings etc. without any rhyme or reasons, leading consequently to the deterioration of the relationship between them to an irreparable extent and therefore the Respondent was left with no alternative than to arrange for separate accommodation for herself and her two minor children with the help and assistance of her parents."......
(Emphasis supplied)
14. Record reveals that the factum of previous litigation inter se the parties and disconnection of electricity and telephone connections, stands proved by the wife through the testimonies of Ajay Kumar (RW-1), Pradeep Kumar (RW-2), Vijay Kumar (PW.3), Rita Devi (PW.4) and Manoj Kumar (RW-5), the witnesses examined in the instant case.
15. It be only observed that electricity and telephone connections stood disconnected prior to the year 2004.
16. In the instant case, the factum of cruelty and harassment and illicit relationship is sought to be proved by the wife through her statement (RW-6) as also statement of her son (RW-7). Careful perusal of their testimonies would only reveal that allegations of cruelty and harassment pertain to the period prior to the year 2004/2005. There is nothing on record to establish any subsequent act or conduct of cruelty meted out by the husband to the wife or the children. Yes, husband can be said to have dragged his wife into unnecessary litigation, deserted her, subjected her to harassment and cruelty.
17. But the crucial question which still arises for consideration is as to whether such person can be allowed to make false, vague and reckless allegations of infidelity against her husband and as to whether such false allegations can be said to have caused cruelty to the husband, entitling him for a decree of divorce.
18. Perusal of their testimonies would only reveal that allegations of illicit relationship with sister-in-law are absolutely vague and unspecific with regard to time, place and manner. In fact, who is this sister-in-law (Bhabhi) has also not been named or particulars disclosed by the witnesses. Though it stands clearly established through the testimony of the husband and the wife that the husband's family is joint and as such residing in their native village, but however, husband has how many brothers? how many of them are married? who are their wives? has not been disclosed at all. Their testimonies are conspicuously unspecific, in fact, vague in that regard.
19. Master Shubham (RW-7) has only deposed that once he had seen his Tai (here he is referring to sister-in-law-Bhabhi) sitting on the lap of his father. But then when, where and which one of the "tai" did he see, he is absolutely silent on this aspect. In any case this part of his testimony does not inspire confidence in view of non disclosure of such fact in his statement dated 01.10.2007 (Ex. PX), so made in the earlier proceedings instituted by his mother seeking maintenance under the provisions of Section 125 Cr.P.C.. In fact, he admits to have been staying with his mother since the year 2003 and thereafter never visited his father's house. It is not that only thereafter he had noticed his father in compromising position
20. In so far as the wife is concerned, she admits not to have vented out any grievances in that regard with any person except her father-in-law, which fact also cannot be said to have been proved. Most significantly she admits that her allegations of illicit relationship are only on her impression and are hearsay in nature. Thus, wife has not been able to prove her allegations of illicit relationship which her husband was having with his Bhabhi.
21. The Hon'ble Supreme Court of India in its various judicial pronouncements has endeavoured to interpret and define the word "cruelty" in the context of Section 13(1) (i-a) of the Act.
22. The Hon'ble Supreme Court of India in K. Srinivas Rao Versus D.A. Deepa, MANU/SC/0180/2013 : (2013) 5 SCC 226 considering its earlier decision rendered in Samar Ghosh Versus Jaya Ghosh, MANU/SC/1386/2007 : (2007) 4 SCC 511, V. Bhagat Versus D. Bhagat, MANU/SC/0155/1994 : (1994) 1 SCC 337; Vijaykumar Ramchandra Bhate Versus Neela Vijaykumar Bhate, MANU/SC/0316/2003 : (2003) 6 SCC 334; and Naveen Kholi Versus Neelu Kohli, MANU/SC/1387/2006 : (2006) 4 SCC 558, inter alia, has held cruelty to be both physical and mental. 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 continuous period of time, has been held to be mental cruelty. Disgusting accusations of unchastity and indecent familiarity with a third person made in the written statement, causing deep hurt has been termed to be mental cruelty.
23. The Hon'ble Supreme Court of India in U. Sree Versus U. Srinivas, MANU/SC/1086/2012 : (2013) 2 SCC 114, had the occasion to deal with a case where the wife, by her consistent conduct of ill-treatment had meted out cruelty by exhibiting her immense dislike towards husband's sadhna in music, showing total indifference and contempt to the tradition of teacher and disciple. Wild allegations were made by the wife casting aspersions on the character of her husband with an intent to malign the reputation of the family. In this backdrop, Court held cruelty to be an inseparable nexus in human conduct/behaviour.
24. The Hon'ble Supreme Court of India in Vishwanath Agrawal, S/O Sitaram Agrawal Versus Sarla Vishwanath Agrawal, MANU/SC/0513/2012 : (2012) 7 SCC 288 held as under:--
"24. In Shobha Rani v. Madhukar Reddi [MANU/SC/0419/1987 : (1988) 1 SCC 105], while dealing with 'cruelty' under Section 13(1)(ia) of the Act, this Court observed that the said provision does not define 'cruelty' and the same could not be defined. The 'cruelty' may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. Thereafter, the Bench proceeded to state as follows:--
"4. ....First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted."
25. After so stating, this Court observed in Shobha Rani Versus Madhukar Reddi, MANU/SC/0419/1987 : (1988) 1 SCC 105, about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that:
"5. ....when a spouse makes a complaint about treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance."
26. Their Lordships in Shabha Rani case referred to the observations made in Sheldon v. Sheldon [(1966) 2 All ER 257] wherein Lord Denning stated, "the categories of cruelty are not closed". Thereafter, the Bench proceeded to state thus (Shobha Rani case): -
"5. .....Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.
6. These preliminary observations are intended to emphasise that the court in matrimonial cases is not concerned with ideals in family life. The court has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Ried observed in Gollins v. Gollins [(1963) 2 All ER 966 (HL)] :
'In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.'"
27. In V. Bhagat v. D. Bhagat, MANU/SC/0155/1994 : (1994) 1 SCC 337, a two-Judge Bench referred to the amendment that had taken place in Sections 10 and 13(1)(i-a) after the (Hindu) Marriage Laws (Amendment) Act, 1976 and proceeded to hold that the earlier requirement that such cruelty has caused a reasonable apprehension in the mind of a spouse that it would be harmful or injurious for him/her to live with the other one is no longer the requirement. Thereafter, this Court proceeded to deal with what constitutes mental cruelty as contemplated in Section 13(1)(ia) and observed that mental cruelty in the said provision can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. To put it differently, the mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was further observed, while arriving at such conclusion, that regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances. What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each case keeping in view the facts and circumstances of that case. That apart, the accusations and allegations have to be scrutinized in the context in which they are made. Be it noted, in the said case, this Court quoted extensively from the allegations made in the written statement and the evidence brought on record and came to hold that the said allegations and counter allegations were not in the realm of ordinary plea of defence and did amount to mental cruelty."
25. The Hon'ble Supreme Court of India in Suman Kapur Versus Sudhir Kapur, MANU/SC/4705/2008 : (2009) 1 SCC 422, has held continuous cessation of marital intercourse or total indifference on the part of the wife towards marital obligations to be the legal cruelty.
26. The Hon'ble Supreme Court of India in Samar Ghosh (supra) illustrated though not exhaustively, when a person can be said to have caused cruelty in the following terms:--
"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."
27. Conscious and deliberate statement delivered with pungency placed on record through pleadings cannot be ignored lightly or brushed aside while determining acts of cruelty in a petition for divorce. (See: Vijaykumar Ramchandra Bhate Versus Neela Vijaykumar Bhate, MANU/SC/0316/2003 : (2003) 6 SCC 334).
28. The Hon'ble Supreme Court of India in V. Bhagat (supra) while taking into account its earlier decision rendered in N.G. Dastane Versus S. Dastane, MANU/SC/0330/1975 : (1975) 2 SCC 326 has held as under:--
"16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. while arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
29. Cruelty is dependent upon social strata or the milieu to which party belong, there ways of life, relationship, temperament and emotions so conditioned by the social status
30. The allegations of unchastity be it against the husband or the wife certainly amounts to cruelty.
31. In the instant case allegations are not made once but repeatedly. Parties are educated. Family of the husband is well reputed. They jointly reside in the village. Undoubtedly such allegations have caused trauma, anguish and pain not only to the husband but entire family. Allegations made out of vengeance are unverified and unsubstantiated, much less proved. There was no adjudication with regard to the same in the earlier litigation inter se the parties. In fact even subsequently with vehemence, they were repeated both in the pleadings and oath. There is no denial to the same. It is not by mistake. It is also not unintentional. In fact, they are made in justification of opposing the petition. Such false or unproven allegations, impeaching the character and fidelity of her husband undoubtedly has affected his reputation. The conduct of the wife, leads to no other inference other than that she has subjected her husband to cruelty. There is reasonable apprehension in the mind of the petitioner that it would be harmful and injurious to live with his wife. With the allegation of infidelity, husband cannot be reasonably expected to live with his wife. The allegations are serious in nature and cannot be taken lightly. Unsubstantiated allegation of infidelity/adultery does amount to cruelty and such acts of cruelty were never condoned by the husband.
32. In this view of the matter, no error can be found with the Judgment and decree dated 01.11.2012 passed by District Judge, Hamirpur, H.P., in HMA Petition No. 03 of 2010 titled as Kuldip Kumar Dogra Versus Smt. Monika Sharma. As such, present appeal stands dismissed.
33. Before parting I must place on record, with appreciation, the efforts put in by Ms. Ishita Bhandari, learned counsel, in assisting the Court.
34. Pending application(s), if any, also stand disposed of accordingly.
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