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Madhya Pradesh High Court · body

2003 DIGILAW 321 (MP)

Peter Messias v. Jennifer Messias

2003-02-25

S.P.KHARE

body2003
ORDER 1. This is an appeal by the husband under section 55 of the Indian Divorce Act, 1869 (hereinafter to be referred to as 'the Act') against the judgment and decree by which his application under section 23 of the Act for'' judicial separation" has been rejected. 2. It is not in dispute that plaintiff Peter Messias and defendant Mrs. Jennifer Messias are Christians, the plaintiff is Chargeman Grade-I (Technical) in Vehicle Factory, Jabalpur (a Govt. of India Undertaking) and the defendant is a Teacher in English and Music in St. Joseph's Convent Girls' Higher Secondary School, Jabalpur holding M.A. degree in English Literature; the plaintiff is an accomplished musician playing guitar and the defendant is fond of playing piano; it is this "common bond of music" that brought them together and after their courtship for 8 years they married at Jabalpur on 31.5.1980; unfortunately they have no issue out of this wedlock; they lived together in Flat No. 19, L.I.C., M.P. Housing Board Colony, South Civil Lines, Jabalpur; the present petition was filed on 7.5.1992; the plaintiff has purchased Flat No. 101-A, Amba Apartment, South Civil Lines, Jabalpur on 25.9.1994 and the defendant has also purchased a separate house in June, 1994 and she is living there; the efforts of the trial Court and this COUl1 to bring reconciliation between the plaintiff and the defendant have failed and they are living separately since more than a decade now. 3. The plaintiff's case is that his wife is treating him with cruelty. The acts of cruelty attributed to the wife are: (a) the defendant is of peevish nature and dominating tendency; (b) the defendant made him to part with his guitar; (c) the defendant does not prepare tea or breakfast nor cares to cook food for him; (d) she picks-up quarrels with him and she is not on talking terms with him; (e) she extorts written apologies and false admissions from him; (f) there is no peace or harmony at home for the plaintiff; (g) the defendant after becoming Secretary of Jabalpur Branch of All India Anglo-Indian Association has completely . 'written-off" her husband and she goes on the pillion seat of the scooter of C.W. Paul who was the President of this Association; (h) her questionable conduct has made her talk of the town and in consequence the plaintiff has to suffer much embarrassment and humiliation; (i) due to intimate relation of the defendant with Mr. C.W. Paul the plaintiff was suspected of having committed his murder in the 1st week of August, 1992 and he was interrogated by the police which caused damage to his reputation; (j) on 29.9.1994 the defendant lodged report against the plaintiff for having committed theft of a Luna Moped and gas cylinder and the plaintiff had to face humiliation on that score; (k) the defendant has no love for the plaintiff and she always tries to harm, harass and humiliate him; (I) the defendant is not fulfilling her marital obligations and they are living under the same roof as complete strangers; and (m) on 27.3.1992 the brother of Mr. C.W. Paul trespassed into his house and thrashed him on the allegation that he is not preventing his wife from keeping alliance with Mr. Paul. 4. The defendant has' 'categorically" denied all the allegations made by the plaintiff against her. It is further pleaded by her that she does all the household work and prepares breakfast and food for the plaintiff. According to her, the plaintiff has a "vile temper" and at times assaults the defendant for no fault of hers. The defendant loves the plaintiff. She has explained that Mr. Paul being the President of the Association used to come to her house from 1991 and there is no intimacy between the two. The brother of Mr. Paul trespassed into the house because of personal quarrel between them. It is further stated by the defendant that the plaintiff is insisting that she should prevail upon her parents to transfer the ownership of a house to him as a dowry. 5. On these pleadings, the trial Court framed a number of issues and after recording evidence of both the sides it has been held that the defendant is not treating the plaintiff with cruelty. On this finding, the application for judicial separation has been rejected. 6. 5. On these pleadings, the trial Court framed a number of issues and after recording evidence of both the sides it has been held that the defendant is not treating the plaintiff with cruelty. On this finding, the application for judicial separation has been rejected. 6. In this appeal it is argued on behalf of the appellant that there is sufficient evidence to prove that the defendant has been treating the appellant with cruelty and there has been irretrievable breakdown of marriage as the parties are admittedly living separately for about 11 years and, therefore, the decree for dissolution of their marriage should be passed in view of the amendment in the Indian Divorce Act in 2001 which has come into force from 3.10.2001, according to which cruelty is now a ground for passing the decree of dissolution of marriage. On the other hand, it is submitted that the defendant is still ready and willing to live with the plaintiff as his wife and the ground of cruelty for divorce has not been established. 7. The evidence on record has been scrutinised by this Court. Peter Messias (PW 1) has deposed that after the marriage the defendant was treating him very shabily and she had adopted dominating nature. According to him she wanted him to dance at her tune. She was not providing him food. She was not talking to him. She was always angry. He used to remain hungry for days together. He used to go to the hotel for taking food or to go to his friends for that purpose. The defendant did not prepare tea for him when he returned from his duties and she used to quarrel with him. She did not permit him to play guitar. He has further deposed that the defendant developed intimacy with Mr. Paul and after his murder it was suspected that he had his hand in this crime. According to him, the brother of Mr. Paul trespassed into his house and thrashed him because of the intimacy of his wife with Mr. C.W. Paul. His wife lodged a report on 14.10.1994 for committing theft of gas cylinder and Luna Moped. She took away these two items with the help of Mahila Police. That is borne out from the document Ex. P-2. Paul trespassed into his house and thrashed him because of the intimacy of his wife with Mr. C.W. Paul. His wife lodged a report on 14.10.1994 for committing theft of gas cylinder and Luna Moped. She took away these two items with the help of Mahila Police. That is borne out from the document Ex. P-2. In cross-examination he has stated that during the period of courtship also he had noticed the dominating nature of the defendant and still married her. He has further stated that the brother of Mr. Paul thrashed him because he was not controlling his wife and for that reason she was having illicit intimacy with his brother. In para 17 he has admitted that he had once thrashed his wife and then apologised in writing. He has denied that he ever asked his wife to get the house of her parents transferred to him. 8. C.I. Browne (PW 2) is the friend of the plaintiff. He has deposed that the plaintiff had complained to him that he was not being treated properly by his wife and their relations are strained. According to this witness plaintiff lived with him from the year 1991 to 1994 and he used to have his food there. 9. On the other hand Jennifer Messias (DW 1) has denied having treated her husband with cruelty. She has admitted that as Secretary of the Association she came in contact with Mr. C.W. Paul, who was the President. There was no intimacy between the two. She has further deposed that she lived with the plaintiff as his wife upto the year 1994 and thereafter he shifted to Amba Apartment and she is living separately in the house purchased by her. She has admitted having made a complaint to Mahila Police as her husband had taken away gas cylinder and Luna Moped to his new house. According to her these articles belong to her and these were given back to her by the police. In cross-examination she has admitted that the gas cylinder was in the name of the plaintiff and the Luna Moped was purchased in her name. Mrs. Henny Watt (DW 2) has deposed that the defendant was doing the entire house-hold work and her relations with her husband were good. 10. In cross-examination she has admitted that the gas cylinder was in the name of the plaintiff and the Luna Moped was purchased in her name. Mrs. Henny Watt (DW 2) has deposed that the defendant was doing the entire house-hold work and her relations with her husband were good. 10. After considering the entire evidence adduced by both the sides, this Court is of the opinion that the cumulative effect is that the defendant was treating the plaintiff with cruelty. There are two glaring instances which go to show that the behaviour of the wife was abnormal. One was her intimacy with Mr. Paul. Even the brother of Mr. Paul did not like it and he wanted the plaintiff to control his wife from having any relation with Mr. Paul. The defendant could act as Secretary of the Association, but it was not proper on her part to have such relations with the President to give rise to suspicion in the mind of the plaintiff or the brother of Mr. Paul. This conduct of the wife was definitely causing embarrassment and humiliation to the plaintiff. The second instance also shows the abnormal behaviour of the wife. She went to the extent of lodging the report at the police station against her husband for committing theft of gas cylinder and the Luna Moped. In case she wanted these items with her she could have chosen a more decent way to retrive them. The manner in which she went to the police station and lodged the report against her husband shows that it has become difficult for the husband to live in her company. These two instances definitely go to support the case of the plaintiff that the defendant is of quarrelsome and dominating nature. The net effect of all the facts and circumstances of the case is that the conduct of the wife towards her husband falls within the ambit of cruel treatment by her towards him. 11. The word cruelty has been used in section 13(1) (ia) of the Hindu Marriage Act, 1955 and that has been judicially interpreted in several decisions of the Supreme Court. 11. The word cruelty has been used in section 13(1) (ia) of the Hindu Marriage Act, 1955 and that has been judicially interpreted in several decisions of the Supreme Court. In V. Bhagat v. D. Bhagat AIR 1994 SC 710 it has been held that "Mental cruelty in S. 13(1) (ia) 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 extent in which they were made." 12. In Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73 the Supreme Court observed that treating the petitioner with cruelty is a ground for divorce under S. 13(1) (i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering of fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty 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. 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. 13. Again in G.V.N. Kameswara Rao v. G. Jabilli (2002) 2 SCC 296 it has been observed: "The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance or marriages in a community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and when only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances." 14. Recently in Praveen Mehta v. Inderjit Mehta AIR 2002 SC 2582 the entire case law has been dealt with and it has been held that cruelty for the purpose of S. 13(1) (ia) is to be taken as a behaviour by one spouse towards the other which causes 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. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavioral pattern by the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other. 15. Keeping in view the meaning of cruelty laid down in the above decisions and testing the evidence of the present case on the touch-stone of the principles laid down therein, it must be held that the behaviour of the defendant in the present case towards her husband is such which must be held to have caused reasonable apprehension in his mind that it is not safe for him to continue the matrimonial relationship with his wife. The plaintiff has reasonable apprehension in his mind that it would be harmful or injurious for him to live with his wife. It is not a case of ordinary wear and tear in married life, but it has gone beyond that and assumed more serious proportions especially in view of the intimacy of the defendant with Mr. Paul and lodging of the report in the police station by her against her husband. It is a case of "mental cruelty" towards the husband by the wife. 16. The "cruelty" was a ground for "judicial separation" as per section 22 of the Indian Divorce Act, 1869. This Act has been amended by the Indian Divorce (Amendment) Act, 2001. Section 10 of the Principal Act has been substituted by new section 10. It is a case of "mental cruelty" towards the husband by the wife. 16. The "cruelty" was a ground for "judicial separation" as per section 22 of the Indian Divorce Act, 1869. This Act has been amended by the Indian Divorce (Amendment) Act, 2001. Section 10 of the Principal Act has been substituted by new section 10. According to this section, any marriage solemnised whether before or after the commencement of this Act may be dissolved on the grounds enumerated therein. The ground provided in Clause (x) of sub-section (1) of section 10 is cruelty. There can be dissolution of the marriage if the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent. This amending Act has come into force during the pendency of this appeal and, therefore, the relief to be granted to the appellant can be moulded in view of the amended provisions in the Act. As stated above, it has been found that the defendant has been treating the plaintiff with cruelty and they are not living together for the last 11 years. The efforts to bring reconciliation between the two have failed. This is a clear case of irretrievable breakdown of the marriage and there is no use of keeping the marital bond intact. 17. In the result this appeal is allowed. The judgment and decree of the trial Court are set aside. The marriage between the plaintiff and the defendant is hereby dissolved on the ground provided in section 10(1) (x) of the Indian Divorce Act as amended in 2001. The parties will bear their own costs in the trial Court and also in this appeal.