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2009 DIGILAW 158 (CHH)

MAMTA SHRIVASTAVA v. TARESH KUMAR SHRIVASTAVA

2009-05-06

D.R.DESHMUKH, DHIRENDRA MISHRA

body2009
JUDGMENT As per Hon'ble Shri Dilip Raosaheb Deshmukh, J. :- 1. This judgment shall govern First Appeal (M) No. 51 of 2007 and First Appeal No. 199 of 2003, the result and the fate of which depends upon the determination of the core question i.e. the meaning and import of the expression "cruelty" as a matrimonial offence. 2. First Appeal No. 199 of 2003 is directed against the order dated 168-2003 passed by the Additional District Judge, Bemetara, District Durg in Civil Suit No. 14-A/2002 whereby an application under Section 9 of the Hindu Marriage Act, 1955 (henceforth "the Act") filed by the appellant, was dismissed. First Appeal (M) No. 51 of 2007 is directed against the judgment dated 10-5-2007 passed by the And Additional Principal Judge, Family Court, Raipur in Case No. 51-A/2006 whereby the suit for dissolution of marriage under Section 13(1)(i-a) of the Act instituted by the respondent was decreed and the marriage between the parties was dissolved by a decree for divorce. 3. Admittedly, the appellant Mamta Shrivastava was married to respondent- Taresh Shrivastava on 9-12-200 1 in accordance with Hindu rites and rituals at Bemetara. Parties lived together as husband and wife till 18-7 -2002. 4. The application under Section 9 of the Act was filed on 28-8-2002 by the appellant for restitution of conjugal rights on the ground that 15 days after the marriage, the respondent started treating her with cruelty while they were living in a rented house at Awadhia Para, Raipur and his family members also threatened to kill her. Despite being informed promptly, the respondent did not come to her rescue, as a result of which, after lodging report in Mahila Police Station on 18-72002. she returned to her maternal home. The respondent took no steps to take her back in the marital fold. 5. The respondent had denied the allegations and pleaded that the appellant had refused to live in the house at Purani Basti, Raipur with his parents and pressurized him to live separately, due to which he shifted to a rented house at Awadhia Para, Raipur. While the respondent was on tour, the appellant would unnecessarily threaten him on the telephone that she would take some drastic steps unless he deposits Rs. 1 lakh in her name in the bank. The appellant also attempted suicide by cutting the veins. She had also thrown her Mangalsutra. While the respondent was on tour, the appellant would unnecessarily threaten him on the telephone that she would take some drastic steps unless he deposits Rs. 1 lakh in her name in the bank. The appellant also attempted suicide by cutting the veins. She had also thrown her Mangalsutra. She would behave in an abnormal manner by removing clothes and throwing utensils. She would always threaten to leave the house. On 17-7-2002, she quarrelled with the landlord and report was lodged against her at Police Station Azad Chowk, Raipur. When the respondent returned from tour on 19-7-2002, the landlord informed him that the appellant had left the house. In this manner, the appellant was continuously treating him with cruelty. 6. The learned Additional District Judge, Bemetara after appreciating the evidence held that the appellant -wife had, without reasonable excuse withdrawn from the society of the respondent. It also took into consideration the fact that the respondent herein had to face mental agony due to a report under Section 498-A of the IPC lodged by the appellant against him. The respondent and his family members had to seek anticipatory bail. It also took into consideration that the appellant had received the articles given by her parents at the time of the marriage from the respondent. In para 29, it was held that the appellant herein had inflicted mental cruelty on the respondent by continuously threatening to commit suicide. On these premises, it dismissed the application under Section 9 of the Act filed by the appellant herein. 7. In Case No. 51-A/2006, the respondent herein had pleaded that after the marriage, the appellant forced him to live separately from his parents. Despite succumbing to her request and living in a rented accommodation, the appellant used to scratch her body with bangles and attempted to commit suicide by cutting veins of her hand. This frightened the respondent. On one occasion, the appellant threw her Mangalsutra and put it only after apology was tendered by the respondent. She used to threaten to leave the house. She was so arrogant and used to pretend eating mosquito coil and would threaten to commit suicide by jumping from the terrace. She also threatened the respondent to implicate him and his family members in a dowry case. On consultation a psychiatrist opined that she was an old mental patient. She used to threaten to leave the house. She was so arrogant and used to pretend eating mosquito coil and would threaten to commit suicide by jumping from the terrace. She also threatened the respondent to implicate him and his family members in a dowry case. On consultation a psychiatrist opined that she was an old mental patient. The appellant refused to cook and do household work and quarrelled time and again with the respondent who was required to bring food from hotel. A demand for Rs. 1 Lakh by the appellant had put the respondent completely out of place. Despite reconciliation sessions in Mahila Police Thana, the appellant did not improve her behaviour. Upon report of the appellant under Section 498-A of the IPC the respondent and his family members were required to seek anticipatory bail. The appellant made complaints against the judges who were seized of the matter. On her application, the articles which were given at the time of marriage were also returned to the appellant. The conduct of the appellant had lowered the social image of the respondent and his family members. Father of the respondent faced utter humiliation and had to apply for voluntary retirement which was also published in the newspaper. The appellant was capable of taking any extreme step to humiliate and torture the respondent. 8. The appellant denied the allegations in toto and pleaded that her behaviour was very cordial and she was a dutiful wife and used to do all household chores. At the behest of his family members, the respondent started harassing and beating her. Behaviour of the respondent and his family members was very cruel. On one occasion, she was dragged down from the stairs by the sister-in-law of the respondent, due to which she received injuries. It was also pleaded that she was tortured for dowry and was given poison, due to which she was shifted to hospital and from there to a rented house. Due to the persistent mental and physical torture, she had no other option but to file cases against the respondent and his family members. 9. The learned 2nd Additional Principal Judge, Family Court, Raipur framed as many as five issues. On appreciation of evidence oral as well as documentary, it held that the appellant herein had inflicted mental cruelty on the respondent. 9. The learned 2nd Additional Principal Judge, Family Court, Raipur framed as many as five issues. On appreciation of evidence oral as well as documentary, it held that the appellant herein had inflicted mental cruelty on the respondent. Considering the series of events projected in the evidence and also the documents and the fact that repeated conciliation efforts had failed, it held that re-union between the parties was an impossibility. It disbelieved the case of the appellant herein in toto and held that it was the appellant who had treated the respondent with cruelty and on this ground allowed the petition under Section 13(1)(i-a) of the Act and dissolved the marriage between the parties by a decree for divorce. 10. We have heard Ms. Deepali Pandey, learned counsel for the appellant and Shri G.M. Ahuja with Shri Sudhanshu Shrivastava, learned counsel for the respondent at length. We have also perused the record. 11. The question which arises in the facts and circumstances is whether a case for divorce under Section 13(1)(i-a) of the Act has been made out. Answer to this question depends on determination of the question formulated in para 1 (supra). In Section 13(1) of the Act, it is laid down that "13. Divorce. - Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party – (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty. "Clause (i-a) of sub-section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modem view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty, may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. The principle that cruelty, may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla's Hindu Law, 17th Edn. Vol. II p. 91). 12. In G. VN. Kameswara Rao Vs. G. Jabilli1, the Apex Court observed as under: "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 a< 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 to 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." 1. (2002) 2 SCC 296: AIR 2002 SC 576 13. In Praveen Mehta Vs. Indeljit Mehta2, the Supreme Court has, after discussing law in details and its earlier judgments on the question raised above held in para 21 as under: 2. (2002)5 SCC 706 :AIR2002 SC2582 21. 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 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. (2002)5 SCC 706 :AIR2002 SC2582 21. 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 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 behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, 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 If the other. 14. The case of the respondent that he had been subjected to cruelty by the wife is not put forth solely on the basis of one or two incidents. In G.V.N. Kameswara Rao Vs. G. Jabilli 1 (supra) paragraph 12, the Apex Court observed as under: "12. 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 of 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 then 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." 15. Judged in the light of the principle discussed above, we find that the matrimonial relationship between the parties was full of turbulence. The appellant had success fully persuaded the respondent to leave his parents and stay in a rented accommodation. Her behaviour was far from normal. She would pretend and threaten to commit suicide. She asked the husband to deposit Rs. 1 lakh in her account. She lodged a report under Section 498-A of the IPC against the husband and his family members and upon grant of anticipatory bail, targeted even the presiding Judges by making complaints against them. She even called her husband impotent which is also reflected in Ex. P. 22(C). She left the matrimonial house in the absence of the husband and did not return. On one occasion, she had thrown her Mangalsutra. Efforts of reconciliation by the Mahila Police Thana had failed. The order sheets in civil suit No. 51-A/2006 would show that repeated efforts for reconciliation in the family Court had also failed. The learned Additional Principal Judge, Family Court, Raipur has discussed the evidence oral as well as documentary in details with objectivity and the finding arrived at by the learned Judge is in conformity with the law laid down in Praveen Mehta Vs. Inderjit Mehter2 (supra). The cumulative effect of the behavioural pattern of the appellant was that the appellant had, by her persistent abnormal behaviour inflicted mental cruelty on the respondent. The treatment accorded by the appellant herein to the respondent had been such as to cause an apprehension in the mind of the respondent that to live with the appellant would be extremely harmful or injurious. The reports lodged in Police against all family members (not sparing .even the married sisters of the respondent) by the appellant and publication of news items against the family members of the respondent lowered their image in society. The learned Family Court Judge has also considered in details the abnormal behaviour of the appellant while drawing an inference of cruelty by her against the respondent. The threats by the appellant to the respondent and his family members would only show that the conduct of the appellant was such that it had become intolerable for the respondent to suffer any longer and live together. The threats by the appellant to the respondent and his family members would only show that the conduct of the appellant was such that it had become intolerable for the respondent to suffer any longer and live together. The humiliation and agony suffered by the respondent and his family members was too much. Raj Kumar P. W. 4, mediator in the marriage between the parties also stated that there was no demand for dowry in marriage. The learned Family Court Judge has drawn an inference of false implication of the respondent and family-members in such cases by the appellant. In the context of facts and circumstances of record, we are of the view that the learned II Additional Principal Judge rightly came to a conclusion that the prayer of the respondent for dissolution of marriage on the ground of cruelty under Section 13(1)(i-a) of the Act was acceptable. For the reasons mentioned above, we are also of the considered opinion that the learned Additional District Judge, Bemetara was also justified in rejecting the application under Section 9 of the Act for restitution of conjugal rights. 16. For the reasons mentioned above, we find no merit in First Appeal (M) No. 51 of 2007 and First Appeal No. 199 of 2003 which are accordingly dismissed. Both Appeals of Appellant Dismissed.