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Himachal Pradesh High Court · body

2014 DIGILAW 996 (HP)

DEEPA KUMARI CHAUHAN v. ASHWANI K. LAL

2014-07-28

RAJIV SHARMA

body2014
JUDGMENT : RAJIV SHARMA, J. 1. This appeal is instituted against judgment and decree dated 23.12.2013 rendered by learned District Judge (Forests), Shimla in Hindu Marriage Petition No. 6-S/3 of 13/09. 2. "Key facts" necessary for adjudication of the present appeal are that marriage between the appellant and the respondent was solemnized on 24.10.2007 as per Hindu rites, in village Kotli (Bir), Tehsil Baijnath, District Kangra, Himachal Pradesh. Parties remained together from 26.10.2007 to 11.11.2007, thereafter from 17.11.2007 to 10.12.2007 and finally from 30.12.2007 to 15.3.2008. Respondent filed a petition u/s 13 (1) of the Hindu Marriage Act, 1955 seeking divorce from the appellant. According to the respondent, the appellant left the company of the respondent and did not come back after 15.3.2008. Conduct of the appellant has caused mental agony to the respondent. Appellant was not discharging matrimonial obligations as a normal wife. She used to quarrel with the respondent on one pretext or the other. She tried to assault the respondent in the month of November 2007. One Shri Tarun Vaid who was next door neighbour of the respondent, saved the situation. She was giving open threats that she would commit suicide and implicate the whole family of the respondent in false and frivolous litigation. She was not showing due respect to the members of the family of the respondent. According to the respondent, appellant did not want to stay in joint family and disclosed that her marriage was solemnized without her consent and under pressure from her parents. 3. Shri Vishal Mohan PW-3 visited the house of the respondent on 22.11.2007. Appellant started creating scene and did not prepare even tea. She also mis-behaved with the senior of the respondent, PW-3 Vishal Mohan. On 2.12.2007 when a close friend was invited for dinner alongwith his family, appellant did not behave properly and locked herself in her room and threatened to involve the family of the respondent in false cases. On 4.1.2008, she threatened to cut her veins and to consume poison and further threatened that she would leave a suicide note putting entire blame on the respondent and his family members. Matter was brought to the notice of the mother of the appellant on 5.1.2008. Matter was also brought to the notice of the father of the appellant on 12.1.2008. Families of the appellant and respondent met at Palampur to resolve the dispute. Matter was brought to the notice of the mother of the appellant on 5.1.2008. Matter was also brought to the notice of the father of the appellant on 12.1.2008. Families of the appellant and respondent met at Palampur to resolve the dispute. On 23.6.2008, father of the appellant again called the parents of the respondent and told that he would visit after a few days. On 25.10.2008, father of the respondent called up at the house of the appellant and asked for the telephone number of the mother of the appellant. However, telephone number was not provided. On 27.12.2008, instead of settling the matter, the father of the appellant threatened the father of the respondent. On 31.12.2008, again father of the appellant used abusive language against the father of the respondent. 4. The petition was contested by the appellant. Appellant has denied all the allegations contained in the petition. She denied that she mis-behaved with the neighbour or the senior of the respondent. she has left matrimonial house with the consent of the respondent and his mother with the assurance that respondent would bring her back after one week. She received a telephone call from the mother of the respondent that she need not come back to Shimla. She denied that she left the company of the respondent at her own, without respondent's consent. 5. Issues were framed by the learned District Judge (Forests) Shimla on 23.12.2013, hence, this petition. 6. Mr. Rakesh Kumar Dogra has vehemently argued that the judgment has been passed on conjectures and surmises. According to him, learned District Judge has not taken into consideration that the acts of the appellant did not constitute 'cruelty'. He then contended that the appellant had all the intentions to live with the respondent. 7. Mr. K.D. Sood, learned Senior Advocate has supported judgment dated 23.12.2013. 8. I have heard the learned counsel for the parties and also gone through the pleadings carefully. 9. Respondent has appeared as PW-1. He has led his evidence by filing affidavit Ext. P-1. According to him, behaviour of the appellant was abnormal. She used to give threats to commit suicide. She insulted the respondent in the presence of his senior and neighbours causing mental cruelty to him. 10. Father of the respondent has appeared as PW-2. He has also led his evidence by tendering affidavit Ext. P-1. According to him, behaviour of the appellant was abnormal. She used to give threats to commit suicide. She insulted the respondent in the presence of his senior and neighbours causing mental cruelty to him. 10. Father of the respondent has appeared as PW-2. He has also led his evidence by tendering affidavit Ext. PW-2/A. According to him, marriage was solemnized on 24.10.2007. A few ceremonies were also performed at Shimla. Appellant was not discharging his duties as a wife. She used to raise trivial issues and pick up quarrels with the respondent. 11. PW-3, Vishal Mohan has also tendered his evidence by tendering affidavit Ext. PW-3/A. According to him, respondent was his junior. His marriage was solemnized on 24.10.2007 and reception was organized on 26.10.2007 at Shimla. Respondent used to receive telephone calls from the appellant. Appellant used to talk rudely over the telephone. He had gone to the house of the respondent. Appellant mis-behaved with him and told that she does not want any interference in her family dispute. 12. PW-4 Narender Pal has also led his evidence by filing affidavit Ext. PW-4/A. He was invited over the dinner with family on 2.12.2007. Behaviour of the appellant was against all norms of a good house wife. She did not also help her mother-in-law in preparing meals. She did not respond to the requests made by the respondent. However, when ultimately she came out of her bed room, her behaviour was abnormal. She threatened the respondent and his family members in his presence that her father is in police department and she would implicate all the family members of respondent in false and frivolous litigation. 13. Appellant also led her evidence by filing affidavit Ext. RW-1/A. She has denied the contents of the petition. According to her, she was discharging her matrimonial obligations. She never mis-behaved with the respondent or his friends and family members. She never created scene. She had gone to her house with the consent of the respondent and his mother. 14. RW-2, Gian Chand Chauhan is the father of the appellant and he has also tendered his evidence by filing affidavit Ext. RW-2/A. According to him, his daughter left the company of the respondent with his consent. Thereafter, they received telephone calls from the mother of the respondent that appellant should not come to Shimla since the marriage was over. 14. RW-2, Gian Chand Chauhan is the father of the appellant and he has also tendered his evidence by filing affidavit Ext. RW-2/A. According to him, his daughter left the company of the respondent with his consent. Thereafter, they received telephone calls from the mother of the respondent that appellant should not come to Shimla since the marriage was over. According to him, appellant wanted to join the company of the respondent. Various efforts were made for reconciliation. Respondent was not interested in keeping the appellant as wife. On 22.4.2008, he had requested the respondent to reconcile the matter at Palampur. 15. RW-3, Bimla Devi has also tendered her evidence by filing affidavit Ext. RW-3/A. She was present at Palampur when respondent alongwith his family members visited there for conciliation. Respondent instead of settling the matter was interested to give divorce. Her brother requested the respondent and his family members not to destroy the life of the appellant. However, respondent and his family members were interested in giving divorce. 16. RW-4 Ashwani Kumar tendered his affidavit Ext. RW-4/A. According to him also, the appellant has gone to her parental house with the permission of her husband and mother-in-law and thereafter, they were told by the mother-in-law of the respondent that appellant should not come to Shimla and marriage was over. They requested the respondent on 22.4.2008 to allow the appellant to join his company. However, respondent and his family members were interested in divorce. 17. RW-5 has stated in his affidavit Ext. RW-5/A that he was present at Palampur when family members of the respondent had come for reconciliation. Father of the appellant had requested the respondent and his family members not to destroy the life of his daughter but the respondent and his family members hurriedly departed from Palampur and they were interested only in divorce. 18. Appellant has left the matrimonial house on 16.3.2008. According to the appellant, she left the matrimonial house with the consent of her husband and her mother-in-law. However, she has also filed a petition u/s 125 of the Criminal Procedure Code in the court of learned Judicial Magistrate First Class. It is averred in the petition that she was forcibly ousted from the matrimonial house. According to the appellant, she left the matrimonial house with the consent of her husband and her mother-in-law. However, she has also filed a petition u/s 125 of the Criminal Procedure Code in the court of learned Judicial Magistrate First Class. It is averred in the petition that she was forcibly ousted from the matrimonial house. There is variance in the statements made by the appellant before the Court and in the petition filed before the Judicial Magistrate First Class u/s 125 of Criminal Procedure Code. The plea taken by the appellant that she has left the house with the permission of her husband and mother-in-law, is false. 19. According to the respondent, appellant is not discharging the duties of a wife properly. Respondent called his senior Shri Vishal Mohan to his house. Appellant mis-behaved with Shri Vishal Mohan also. He has appeared as PW-3. He has supported the version of the respondent. According to him, appellant threatened to commit suicide and to teach a lesson to the respondent and his family members. He has also tried to resolve the matter amicably but could not succeed. 20. PW-4 Narender Pal was called over the dinner on 2.12.2007 by the respondent. Appellant did not come out of her bedroom. When after great insistence she came out of her room, she threatened the respondent and his family members that her father was in the police department and that she would implicate all the family members in false and frivolous litigation. Respondent and his family members also visited Palampur to resolve the matter. The members of the appellant's family have never visited Shimla to resolve the matter. RW-2, Shri Gian Chand Chauhan, has admitted that neither he nor his wife have come to the house of the respondent at Shimla. RW-2 has also admitted that father of the respondent has tried to contact him. He has also admitted that after 16.3.2008, no efforts were ever made to send the appellant to her matrimonial house. Appellant has left the house of the respondent on 16.3.2008. She has not made any sincere efforts to join the company of the respondent. 21. Acts as discussed herein above definitely amount to cruelty. Appellant could not insult her husband in the presence of his senior and his friend, who was invited over the dinner. She has left the matrimonial house without the permission of her husband and mother-in-law. She has not made any sincere efforts to join the company of the respondent. 21. Acts as discussed herein above definitely amount to cruelty. Appellant could not insult her husband in the presence of his senior and his friend, who was invited over the dinner. She has left the matrimonial house without the permission of her husband and mother-in-law. This will amount to animus deserendi. The threats given by the appellant to commit suicide and to cut her veins and further to falsely implicate the respondent and his family members, if taken into consideration, with other allegations, also amount to cruelty. Behaviour of the appellant towards respondent was of sustained disdain. 22. Their Lordships of the Hon'ble Supreme Court in case Shobha Rani Vs. Madhukar Reddi, (1987) 4 JT 433 have explained the term "cruelty" as under: "4. Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in elation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. 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. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in 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. 5. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. In such cases, the cruelty will be established if the conduct itself is proved or admitted. 5. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised 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. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon, [1966] 2 All E.R. 257 (259) "the categories of cruelty are not closed." 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/realm of cruelty." 23. Their Lordships of the Hon'ble Supreme Court in Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511 , have enumerated some instances of human behaviour, which may be important in dealing with the cases of mental cruelty, as under: "98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. 99. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. 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. (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. (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. 24. Their Lordships of the Hon'ble Supreme Court have held in Manisha Tyagi Vs. Deepak Kumar, AIR 2010 SC 1042 , as under: "24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonable be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that would be harmful or injurious to continue the cohabitation with the other spouse. Therefore, to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However, in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce." 25. Their Lordships of the Hon'ble Supreme Court have held in Ravi Kumar Vs. Julmi Devi, (2010) 2 SCALE 289 , as under: "19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it ma be just an attitude or an approach. Silence in some situations may amount to cruelty. 20. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it ma be just an attitude or an approach. Silence in some situations may amount to cruelty. 20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial case can be of infinite variety-it may be subtle or even brutal and may be by gestures and word. That possible explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial case are never closed. 21. This Court is reminded of what was said by Lord Reid in Gollins v. Gollins about judging cruelty in matrimonial cases. The pertinent observations are (AC p. 660) ".. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people." 22. " About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi at AIR p. 123, para 5 of the report: (SCC p. 108, para 5) "5. It will be necessary to bear in mind that there has been (a) marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the 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. 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. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties." 26. Their Lordships of the Hon'ble Supreme Court have held in Pankaj Mahajan Vs. Dimple @ Kajal, (2011) 12 SCC 1 , as under "36. From the pleadings and evidence, the following instances of cruelty are specifically pleaded and stated. They are: i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace. ii. Pushing the appellant from the staircase resulting into fracture of his right forearm. iii. Slapping the appellant and assaulting him. iv. Misbehaving with the colleagues and relatives of the appellant causing humiliation and embarrassment to him. v. Not attending to household chores and not even making food for the appellant, leaving him to fend for himself. vi. Not taking care of the baby. vii. Insulting the parents of the appellant and misbehaving with them. viii. Forcing the appellant to live separately from his parents. ix. Causing nuisance to the landlord's family of the appellant, causing the said landlord to force the appellant to vacate the premises. x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the appellant. xi. Always quarreling with the appellant and abusing him. xii. Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the appellant. 27. Their Lordships of the Hon'ble Supreme Court have held in Vishwanath Agrawal Vs. Sau. Sarla Vishwanath Agrawal, AIR 2012 SC 2586 as under: "22. The expression 'cruelty' has 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. 28. In Praveen Mehta Vs. Sarla Vishwanath Agrawal, AIR 2012 SC 2586 as under: "22. The expression 'cruelty' has 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. 28. In Praveen Mehta Vs. Inderjit Mehta, AIR 2002 SC 2582 it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be established by direct evidence and 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 facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other." 28. In view of the analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending applications, if any, also stand disposed of. No order as to costs.