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2003 DIGILAW 491 (PNJ)

Baikunth Sagar v. Sarav Mangla Sharma

2003-04-02

ADARSH KUMAR GOEL

body2003
ORDER Adarsh Kumar Goel, J. - The appellant-husband filed a divorce petition alleging that marriage between the parties took place in the year 1982 and a male child was born on 8.10.1983; the wife used to pick up quarrel on some pretext or the other though the husband and his family members were good and kind enough towards her; the husband did not accept any dowry; the wife refused to do the household work and used to taunt the husband that he was not earning sufficient; in July 1983 father of the wife met with an accident and the husband and wife went to see him, but after going there, she refused to return to the matrimonial home; the child was born when the wife was with her parents; the husband visited the nursing home and paid the expenses of delivery, but even when the husband went to meet his child, the wife was angry and made allegations against mother of the husband; with the intervention of the respectable persons, reconciliation was arrived at and the wife and child were brought back to the matrimonial home when the child was three years old; the wife continued to misbehave and she levelled shameful allegations against husband and his parents and finally on 18.4.1995, the wife again left the matrimonial home; she lodged complaint with Nari Raksha Samiti, but after hearing the version of the husband, the complaint was dismissed; the wife lodged a false complaint with the police station of demand of dowry; which was not accepted; the husband filed a divorce petition in June, 1987, which was compromised before the Lok Adalat on 12.3.1988 and the parties reached an understanding that the husband will live separate from his parents with the wife in House No. 256, Sector 7-A, Faridabad, but the wife instead of resuming cohabitation left for her parents house. This divorce petition was filed on 3.5.1988 stating that cause of action accrued on 14.3.1988 when the wife refused to resume cohabitation which cause of action was still continuing. 2. The wife filed a reply denying the allegations and stated that the husband harassed her for demand of dowry, on account of which she was forced to live separately and all expenses of delivery etc. 2. The wife filed a reply denying the allegations and stated that the husband harassed her for demand of dowry, on account of which she was forced to live separately and all expenses of delivery etc. were given by the wife and her parents and she resumed cohabitation on an assurance from the husband that he would keep her and the child with love, but thereafter, she was again thrown out of the matrimonial home on 18.4.1985; the earlier divorce petition was compromised, but inspite of the compromise, the husband did not cohabit with the wife and left the rented house by taking away dowry articles etc. It was also alleged that earlier divorce petition was compromised by the husband to avoid to pay maintenance, which had been ordered. 3. Parties appeared as witnesses in support of their respective version. The husband apart from appearing himself examined his father Devi Chand Sharma PW2, while the wife apart from appearing herself examined her father Paras Ram Sharma, RW-2. 4. After considering the evidence on record, the trial court dismissed the divorce petition holding that ground of desertion was not proved as the petition was filed on 3.5.1988, though the wife admittedly lived with the husband after compromise dated 12.3.1988; the ground of cruelty was not established as PW-2 Devi Chand Sharma merely stated that the wife did not show respect to him, but did not say that she ever ill-treated or abused him; no other relation or neighbour was examined; the wife deposed on oath that she never ill-treated the husband or his parents; she sent telegram Ex. R-2 to the effect that the husband had deserted her and taken away all her articles and RW-2 Paras Ram Sharma also supported the version of the wife. It was also held that since the earlier petition was withdrawn on 12.3.1988, no allegation had been made thereafter with regard to cruelty or desertion on account of which a (sic) petitionwas barred by res judicata. 5. Aggrieved by judgment of the trial Court, this appeal has been preferred. 6. Shri Mehta, learned counsel for the appellant submitted that after compromise dated 12.3.1988, cohabitation was resumed, but the respondent wife refused to continue to live with the husband and levelled wild allegations against the husband and sent a false notice and thus, cause of action accrued on 14.3.1988 when the wife refused to resume cohabitation. 6. Shri Mehta, learned counsel for the appellant submitted that after compromise dated 12.3.1988, cohabitation was resumed, but the respondent wife refused to continue to live with the husband and levelled wild allegations against the husband and sent a false notice and thus, cause of action accrued on 14.3.1988 when the wife refused to resume cohabitation. He also submitted that once a party to the marriage misbehaved after compromise, previous past allegations of cruelty could also be examined. He submitted that there will be no res judicata. 7. Learned counsel for the appellant also submitted that the allegation of cruelty ought to have been examined and relied on judgment of Apex Court in Savitri Pandey v. Prem Chandra Pandey, 2002(2) SCC 73 and judgment of this Court in Amrik Singh v. Surjit Kaur, 1975 Current Law Journal 360 at page 367, wherein concept of mental cruelty was discussed. He submitted that approach of the trial Court was erroneous. 8. None appears for the respondent-wife. She is proceeded against ex-parte. 9. During pendency of this appeal, a reference was made to the Lok Adalat and the Lok Adalat found that no settlement was possible. 10. I have considered the submissions of learned counsel for the appellant and perused the record of the case. 11. No doubt, cruelty is a ground for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 but the said expression has not been defined under the Act. Prior to amendment, vide Act 68 of 1976, cruelty was a ground for judicial separation and the expression "cruelty" was qualified by an explanation that it should be such as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. The said words have since been omitted. In G.V.N. Kameshwara Rao v. G.T. Jabilli, (2002) 2 SCC 296, Para 10, the Apex Court observed that omission of the words which described "cruelty" in the unamended Section 10 of the Hindu Marriage Act, has some significance in the sense that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. Nevertheless, cruelty comprises acts committed with intention to cause sufferings to the opposite party, though austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty. Which acts amount to cruelty is to be assessed having regard to the status of parties in social life, their customs, traditions and other similar circumstances. It was observed in the said decision that the court should consider whether conduct of the respondent was such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible. This is to be judged not only from a solitary incident, but on an overall consideration of all relevant circumstances. 12. In Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, while considering approach which a court has to adopt, it was observed that though apprehension of a petitioner has to be reasonable, concept of reasonable man as known to the law of negligence could not be imported for judging matrimonial relations but the court has to examine the matter from the point of view of individual partners and having regard to their background. Mere disharmony or incompatibility could not be held to be cruelty. It was also observed that a person could not have condoned cruelty nor should be taking advantage of his own wrong. 13. In Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, it was observed that in the case of a mental cruelty, the court has to see nature of cruel treatment, its impact on the mind of the affected spouse and then to draw an inference whether it causes reasonable apprehension that it will be harmful or injurious for such a spouse to live with the other. 14. In Savitri Pandey (supra), it was observed "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 or fear to the matrimonial life of the other. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or 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." 15. In Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706, it was observed that object of legislature in not giving any definition of "cruelty" appears to be to leave it to the court to determine on facts and circumstances of each case whether a particular conduct amounts to cruelty. Since actions of men are so diverse and infinite that it is impossible to expect a general definition which could be exhaustive and not fall in some cases. It was observed that cruelty was 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. 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 were living. It will not be correct to take any instance of misbehaviour in isolation and then pose the question whether such behaviour was sufficient by itself to cause mental cruelty. Approach of the court should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and the draw a fair inference whether the petitioner was subjected to mental cruelty. 16. In the present case, the acts alleged against the respondent are that the wife used to call names and she was not behaving properly and inspite of compromise to live together, the wife did not continue to live in a separate house taken by the husband. 16. In the present case, the acts alleged against the respondent are that the wife used to call names and she was not behaving properly and inspite of compromise to live together, the wife did not continue to live in a separate house taken by the husband. In the examination-in-chief, the husband stated that he lived in a separate house for two months, but in cross-examination, he admits that he lived in the said house from 20.3.1988 to 20.4.1988 and thereafter he started living with his parents. Cruelty cannot be held to be established on mere allegation that the wife was of loose temper or that she ill-treated the husband or his parents or called bad names. Even though standard of criminal case may not be applied, specific instances have to be shown from which the court can draw an inference that conduct of the respondent was reprehensible so as to hold that ground of divorce was established. From the evidence which mainly comprises of PW-1, the husband and PW-2, father of the husband, it is not possible to hold that any such acts have been committed by the wife, which may have caused any physical or mental injury or cruelty to the appellant. On the other hand, the wife in pRegulation nt condition lived with her parents and delivery took place when she was in the house of her parents. It cannot be said that she did so voluntarily unless forced by the situation. There is nothing to show that the husband took any step to look after the child or the wife. It has been admitted by the husband that the wife did resume cohabitation at least for two nights, though in para 10 of the petition, the allegation is that the wife refused to resume cohabitation at all but the wife did resume cohabitation as admitted in cross-examination by the husband. It cannot be held that the wife was not interested in living with the husband. For the above reasons, I am unable to accept the contention that ground of cruelty is made out. I need not go further into the question whether earlier petition will debar the subsequent petition as even after considering the subsequent petition on merits, I am unable to hold that ground of cruelty is made out. The appeal is dismissed. Appeal dismissed.