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2024 DIGILAW 390 (CHH)

Seema Gupta, W/o. Anurag Kesharwani v. Anurag Kesharwani, S/o. Basant Kesharwani

2024-05-01

NARENDRA KUMAR VYAS

body2024
ORDER : 1. The appellant/wife has filed the present First Appeal (MAT) under Section 28 of the Hindu Marriage Act being aggrieved with the judgment and decree dated 20-2-2023 passed by the learned Additional District Judge, Pendraroad, Dist. Bilaspur in Civil Suit No 13-A/2020 by which the suit filed by the appellant/wife under Section 13 of the Hindu Marriage Act, 1955, seeking decree of divorce and dissolution of marriage has been rejected. 2. The brief facts reflected from the record are that the plaintiff/wife filed a petition under Section 13 of the Hindu Marriage Act, 1955 before the learned Additional District Judge, Pendraroad mainly contending that the appellant and respondent are governed by the Hindu Law. The marriage of the appellant/wife was solemnized forcefully with respondent/husband on 28-6-2020 at Nagar panchayat, Nawagarh, District Janjgir-Champa suppressing the fact that the respondent/husband is suffering Epilepsy where the parents of the appellant/wife have not performed the rituals of Kanyadhan. It has also been contended that one of the relatives of the father of the appellant namely Gorelal Gupta had fixed the date of marriage on 27-6-2020 and 28-6-2020. On 28-6-2020 when the ceremonial function was going on, they have also performed “Tilak” at 8.30 pm in the house of Anurag Keshwarwani/husband. When the marriage programme was going on, all of a sudden the face of the husband turned pale and his body started jerking with stiffness due to fits. When the parents of the appellant and guardians had discussed the issue with the respondent, the respondent, his father and elder father concealed the fact and started other rituals of the marriage. It has also been contended that at the time of performing of the rituals of the marriage, again the respondent developed the same symptoms of epilepsy, therefore, ceremonial function was stopped and the women relatives of the respondent started discussing the matter. The brother-in-law of the appellant along with 7-8 persons had rushed to the place of marriage who were in a drunken condition and they have forcefully completed the marriage and they were not allowed to move from that place. It has also been stated that she was mentally prepared that as soon as after marriage she will go to the house of the respondent and examine her husband at hospital available near to her residence. It has also been stated that she was mentally prepared that as soon as after marriage she will go to the house of the respondent and examine her husband at hospital available near to her residence. When she requested for providing medical facilities, behaviour of the family members of the respondent became deteriorated against her and immediately after 3 days of the marriage, in-laws of the appellant started teasing her by saying that their son is valued at Rs.20,00,000/- whereas she has given only 5 Tulas of gold whereas they have spent lot of money in the marriage and who will re-pay the same and asked her to bring Rs.12,50,000/- and 10 tulas of gold additionally, otherwise, she will be in difficult situation. 3. It has also been contended that due to illness of the respondent and torture given by the family members of the respondent, her matrimonial life was spoiled. The respondent and his family members refused her to send to her parental house for some function. She was also not allowed to move around the house and she was directed to remain stayed in the bedroom or in the kitchen only when it is required. It has also been contended that when her brother and family members used to visit to meet her at Nawagarh, then the respondent and his family members refused her to meet them so that the illness of the respondent cannot be known to public at large. Due to mental agony and torture, the physical relationship did not develop but she was compelled to have physical relation with respondent by the family members including her brother-in-law. He also abused her and she was not allowed to go to her parental house. It has also been alleged that the mobile phone of the appellant was kept by the brother-in-law of the appellant. The father-in-law of the appellant used to enter into her room without any reason and she was subjected to eye teasing. On 3-8-2020 parents of the appellant came to the house of the respondent/husband to invite her daughter for celebrating Raksha Bandhan festival. The father-in-law of the appellant used to enter into her room without any reason and she was subjected to eye teasing. On 3-8-2020 parents of the appellant came to the house of the respondent/husband to invite her daughter for celebrating Raksha Bandhan festival. The respondent and his family members did not permit the father of the appellant to take his daughter for Raksha Bandhan festival and after long discussion they agreed to send the appellant for Raksha Bandhan festival and in this regard a meeting was convened in presence of some of the relatives of the respondent wherein it was agreed by them that she will be permitted to go only when she will leave the entire jewelries which were given to her at the time of marriage by the respondent’s family members. Accordingly, the appellant had left the entire jewelries and then only she was allowed to go to her parental house. It is also contended that she was subjected to mental agony and torture for demand of dowry, therefore, she has moved an application before the Station House Officer, Gorella and on the basis of this factual foundation she has filed the suit before the learned Additional District Judge, under Section 13 of the Hindu Marriage Act for grant of decreed of divorce. 4. The respondent/husband had filed written statement denying the allegations levelled against him in the plaint. It has been contended that the marriage was solemnized with consent of the appellant and her family members and permission was also granted as per Covid-19 guidelines issued by the Government of Chhatisgarh. It has also been contended that the marriage was solemnized in a family atmosphere and all the rituals were conducted in a happy mood in presence of family members of both sides. This factual matrix can be established by video and photographs of the marriage function. It has also been denied that the respondent was suffering from epilepsy or he was attacked by the fits of epilepsy. It is also denied that the brother-in-law of the respondent got solemnized their marriage by using force and all the allegations are far from truth and would pray for dismissal of the suit. It has also been denied that the respondent was suffering from epilepsy or he was attacked by the fits of epilepsy. It is also denied that the brother-in-law of the respondent got solemnized their marriage by using force and all the allegations are far from truth and would pray for dismissal of the suit. It has also been contented that the appellant with consent of the respondent had gone to her parental house for celebrating Raksha Bandhan festival and she was wearing the gold ornaments of 18 Tulas gold and one Kilo Gram silver ornaments and taken her smart phone with her. It has also been stated that the appellant used to pass irrelevant comments against the respondent and his family members which have been recorded in the mobile phone. It has also been denied that the appellant was subjected to torture by mental agony for demand of dowry. The allegations made against them are incorrect. It has also been contended that in view of the oral direction given by the learned trial court he was subjected to medical examination on 17-3-2021 according to which he has been found fit, therefore, the allegation that the respondent was suffering from epilepsy, is incorrect and it is also denied that Kanyadhan has not been performed by the appellant’s parents. It has also been contended that appellant/wife is making false allegations and would pray for dismissal of the first appeal. 5. From the pleadings of the parties, learned trial Court has framed three issues on 13-8-2021 which reads as under. 1- D;k vukosnd }kjk vkosfndk ds lkFk dzwjrk dkfjr fd;k x;k gS\ 2- D;k vkosfndk] vukosnd ds fo:) fookg&foPNsn dh fMdzh izkIr djus dk vf/kdkjh gS\ 3- lgk;rk ,oa okn O;;\ 6. Appellant to substantiate her case has examined herself (PW/1), her father Mahesh Gupta (PW/2), Ajay Kumkar Pandey (PW/3), Nilesh Kumar Kedia (PW/4) and exhibited complaint made in Police Station Gorella on 10-11-2021 as Ex.P/1. The appellant in examination-inchief has reiterated the same stand which she has taken in the plaint and in the cross examination she has again affirmed that the respondent is suffering from epilepsy and her in-laws have caused torture to her. In the cross examination she admitted that her father has not given any money for marriage. She has also admitted that before marriage no demand of dowry was made from her parents. In the cross examination she admitted that her father has not given any money for marriage. She has also admitted that before marriage no demand of dowry was made from her parents. She has also stated that earning of her family members is on lower side whereas the respondent is having good financial capacity. 7. The father of the appellant in examination-in chief by way of an affidavit has reiterated the same stand taken by the plaintiff in her plaint. In cross examination he has stated that no medical report of the respondent has been produced wherein illness of epilepsy has been shown, but he has voluntarily stated that the respondent is suffering from epilepsy. In the cross examination he has stated that before marriage demand of dowry was made and he had given Rs.7,50,000/- cash and 5.5. Tulas of gold and has further clarified that 3.5 tulas of gold has been given to his daughter and 2 tulas of gold has been given to his son-in-law, but he has not produced any receipt of purchasing the gold. He has also stated that the marriage programme was solemnized at Nawagarh and 18 persons were present. He has stated that marriage was not solemnized as per their rituals. 8. PW/3 Ajay Pandey has stated in examination-in-chief that the appellant had kept jewelries in the bag which she intended to carry with her. The bag was checked by the respondent and his brother and entire jewelries were taken out by mother-in-law of the appellant. The witness was cross-examined but no effective cross-examination was made and the statement made in the examination-in-chief remained unrebutted in-fact in the cross-examination the statement that the jewelery were kept in bag has been admitted and no cross-examination was done with regard to subsequent statement of removal of the gold and checking the bag, thus it is admitted that the jewelries were taken out by the respondent’s mother. He has stated that a meeting was convened in the house of Gautam wherein she agreed that whatever expenditure incurred by the appellant’s family members, the same can be repaid and dispute can be resolved. He has stated that a meeting was convened in the house of Gautam wherein she agreed that whatever expenditure incurred by the appellant’s family members, the same can be repaid and dispute can be resolved. He has also admitted that the respondent’s family members were saying that they are ready to keep the girl with them and they did not intend to give divorce to her, but due to illness of the respondent, the family members of the appellant did not allow her to go to the house of the respondent. 9. PW/4 Nilesh Kumar Kedia has also reiterated the same stand which the other witnesses have taken. He has stated in the cross examination that the appellant informed him that the respondent is suffering from epilepsy and he is physically weak and she is being tortured, therefore, she will not go to her matrimonial house. 10. Respondent himself examined as DW/1 and exhibited MRI report given by Apollo Hospital (Ex.D/1), report of EEG (Ex.D/2), report of Neurophysiology (Ex.D/3), and report given by Dr. A. Jayavelu, M.D. (Gen. Neurology) wherein it has been observed that there is no either clinical or laboratory evidence of any neurogic illness including seine disorder and payment slip of outpatient (Ex.D/5). The respondent in examination-in-chief has reiterated the same stand which he has taken in the written statement. In the cross examination he has denied about the fact that he is suffering from epilepsy or there was any fits of epilepsy during ceremonial function of the marriage and denied the allegations made against them. He has also denied that his father has ever demanded Rs.12,50,000/- and 10 tulas of gold from the appellant. 11. Learned trial court has dismissed the suit filed by the appellant for grant of decree of divorce vide its judgment and decree dated 20-2-2023. Being aggrieved with the judgment and decree-dated 20-2-2023, the appellant has preferred this first appeal. 12. This Court has initiated the conciliation proceeding by sending the matter to the mediation centre of this Court. The mediation was a failure as reflected from the order sheet of the mediation centre dated 22.07.2023. Thereafter, the matter was taken up before this Court and this Court has directed the appellant and respondent to appear on 11.10.2023. 12. This Court has initiated the conciliation proceeding by sending the matter to the mediation centre of this Court. The mediation was a failure as reflected from the order sheet of the mediation centre dated 22.07.2023. Thereafter, the matter was taken up before this Court and this Court has directed the appellant and respondent to appear on 11.10.2023. On 11.10.2023, during conciliation proceeding in the Court it was observed that parties may opt for mutual divorce as there is no possibility of reunion of the family. The appellant in her option has claimed Rs. 7,50,000/- towards alimony and has stated that she will withdraw the allegation leveled against the respondent and also against the alleged illness of respondent. The respondent along with his counsel has prayed for time to discuss the issue with the family members. Thereafter, the matter was listed on 19.10.2023. On 19.10.2023 the appellant has moved application under Section 24 of the Hindu Marriage Act and a lot of discussion was done to resolve the issues and the matter was adjourned to 03.11.2023. On 03.11.2023, the appellant along with her mother, respondent along with his father and relatives appeared before this Court. This Court made an attempt to persuade them to settle the issue but the respondent was not agree to the proposal made by the appellant and the arguments were heard. This Court in terms of the order passed by the Hon’ble Supreme Court in case of Aditi Alias Mithi vs. Jitesh Sharma and Other {2023 SC Online 1451} wherein the Hon’ble Supreme Court has directed the parties to submit affidavit regarding their earning to decide the amount of maintenance. The appellant has submitted affidavit and details of the properties owned by respondent’s family members and the respondent has filed affidavit wherein he has stated that he is doing service in the shop of his father and no proper income has been placed on record. This Court has also directed to the Income Tax department to verify the income of respondent vide order dated 06.12.2023 and in pursuance of that direction counsel for the Income Tax appeared but no information was placed on record, therefore, this Court is only confining the refund of Shtridhan which was given to the appellant at time of marriage only. 13. 13. Learned counsel for the appellant would submit that the finding recorded by the trial court suffers from perversity or illegality as the learned trial court has ignored the vital evidence of torture and statement of the victim/appellant wherein she has reiterated that the respondent is suffering from epilepsy and ignored the evidence brought on record, thus, the finding suffers from perversity or illegality. Learned trial court has also ignored the evidence as appellant in his cross examination has stated that because of harassment, she seeks divorce. He would further submit that the foundation of marriage has already scattered because of suppressing of illness of the respondent and the trial court has committed illegality in relying upon the reports without examining the Doctor who has given the report. He would further submit that appellant through oral evidence has proved the factum of suffering of epilepsy as such burden shifts upon the respondent to disprove the fact that on the date of marriage no such incident has happened which they utterly failed to discharge. He would further submit that the appellant has categorically stated the factual matrix of the case through Ex.P/1 complaint made by the appellant in the police station and there was no cross examination with regard to the contents of the complaint still the learned trial Court has committed illegality in dismissing the suit and would pray for allowing the appeal. To substantiate his submission, he has relied upon the judgments of Hon’ble Supreme Court in Raj Talreja vs. Kavita Talreja, reported in AIR 2017 SC 2138 , Jasbir Kaur Sehgal vs. District Judge, Dehradun and others, reported in AIR 1997 SC 3397 , Neha Tyagi vs. Lieutenant Colonel Deepak Tyagi, reported in 2002 (3) SCC 86, Rajib Kumar Roy vs. Suishmita Saha, reported in AIR 2023 Online SC 801, Munish Kakkar vs. Nidhi Kakkar, reported in AIR 2020 SC 111 , Subhransu Sarkar vs. Indrani Sarkar (Nee Das), reported in AIR 2021 Online SC 716, Samar Ghosh vs. Jaya Ghosh, reported in AIR 2007 Online SC 377 and Rajib Kumar Roy vs. Sushmita Saha, reported in AIR 2023 Online SC 801. 14. 14. On the other hand, learned counsel for the respondent would submit that PW/1 -Smt. Seema Gupta in paragraph 20 of her cross examination has admitted the fact that she had stayed for 35 days in her matrimonial house and there was no physical assault with her, one mobile phone was given to her by the respondent/husband. The appellant has also taken away the gold/silver ornaments which were given to her during the marriage ceremony. He would further submit that the appellant in para 21 in examination-in-chief has admitted that when she was living in her matrimonial house about 35 days and during this time she did not see any symbol of epilepsy as such she did not make up her mind to take divorce. He would further submit that the learned trial court after appreciating the evidence and material on record has rightly dismissed the suit filed by the appellant. He would further submit that there was no ground for dissolution of marriage under Hindu Marriage Act has been made out, therefore, the appeal filed by the appellant deserves to be dismissed. 15. I have heard learned counsel for the parties and perused the record of the court below with utmost satisfaction. 16. From the above factual matrix and considering the evidence on record, the points to be determined by this court are (i) whether the finding recorded by the learned court below suffers from perversity or illegality which warrants interference by this court and (ii) whether the appellant is entitled to get decree of divorce on the count of cruelty as per Hindu Marriage Act, 1955. 17. Since both points are interconnected, therefore, they are being decided commonly. From the perusal of the evidence, it is clear that not only the appellant but other witnesses examined by the appellant have categorically stated about effect of epilepsy they have seen in the face of the respondent when the marriage was solemnized. The respondent husband in his written statement has categorically denied the fact and to substantiate his factum he has also mentioned that this can be visualized from the video recording which was taken place during marriage ceremonial programme but the respondent has not produced the same for the reason best known to him. The respondent husband in his written statement has categorically denied the fact and to substantiate his factum he has also mentioned that this can be visualized from the video recording which was taken place during marriage ceremonial programme but the respondent has not produced the same for the reason best known to him. To overcome this factual matrix, the respondent to substantiate his stand has stated that he is not suffering from epilepsy as submitted the medical report, MRI report dated 21-7-2022, EEG report dated 21-7-2022 and Neurophysiology report dated 21-7-2022 and opinion given by the examining Dr (Ex.D4) dated 21-7-2022 whereas the marriage of the respondent was solemnized with the appellant/wife on 28-6-2020. The respondent has not produced any report prior to the incident i.e., on 28-6-2020 or immediately after 28-6-2020 but has submitted the report after eight months of the alleged effect faced by him. 18. Disease of epilepsy has been defined in medical dictionary which reads as under. “A group of disorders marked by problems in the normal functioning of the brain. These problems can produce seizures, unusual body movements, a loss of consciousness or changes in consciousness, as well as mental problems or problems with the senses”. 19. From above medical dictionary it is quite vivid that various types of disorders appear in the brain of mankind which can be called epilepsy. The appellant and his witnesses have categorically narrated the incident which remain unrebutted in the cross-examination also, thus, it is established that the respondent was suffering from epilepsy and this fact was not informed to the appellant and her family members. Thus, it is nothing but suppression of material information. The marriage was solemnized on suppression of material information whereas the relationship of husband and wife is based upon faith and confidence of each other whereas in the present case foundation of matrimonial life has been started by concealing the medical difficulty faced by the respondent which is a cruelty and is a ground getting decree of divorce under Section 13 of the Hindu Marriage Act. Section 13 of the Hindu Marriage Act provides ground of divorce which reads as under:- “13. Section 13 of the Hindu Marriage Act provides ground of divorce which reads as under:- “13. Divorce.—(1) 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) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] (ii) has ceased to be a Hindu by conversion to another religion; or 2[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,— (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub—normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] 3* * * * * (v) has 3* * * been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive”. 20. The learned trial court while dismissing the suit has recorded its finding that appellant is unable to prove the grounds for obtaining divorce by recording cogent evidence. The learned trial Court has committed illegality regarding the standard of proof in matrimonial cases and it is not required to be proved beyond reasonable doubts and the cases have be proved on principle of probabilities. The learned trial Court should have considered that the appellant and her witnesses have categorically stated about the illness of the respondent which was not rebutted by the respondent. The learned trial Court should have considered that the appellant and her witnesses have categorically stated about the illness of the respondent which was not rebutted by the respondent. Even the medical report which was of subsequent period is not relevant for deciding the issue as the epilepsy can be ascertained when the patient has faced the effect of epilepsy. In the normal course of time even if EEG test shows nothing still it is possible that the person is having epilepsy and that has to be determined based on history of the patient. The Ex.D/2 which is the report of the EEG submitted by the respondent also mentions the note that EEG report should always be correlated with clinical features, as such it is incumbent upon the respondent to examine the person who has clinically examined him. In absence of any such materials placed on record the learned trial Court has committed illegality in relying upon the report. 21. The learned trial Court has not assigned any reason to disbelieve the statement of the victim/appellant and has recorded finding that no documentary evidence has been proved regarding payment of Rs.7,50,000/- and has also recorded a finding that the parents of the appellant have not made any payment towards demand of dowry. it has also recorded finding all the jewelries which were given to her at the time of marriage are being kept by the appellant ignoring the evidence of PW/3 Ajay Pandey who has categorically explained the incident taking out jewelries from the bag by respondent’s mother. Which have not been considered by the learned trial Court while dismissing the suit. 22. The learned trial court has further recorded a finding in para 16 of the impugned order that there was no physical or mental cruelty committed with the appellant in her matrimonial house as she has not made up her mind to give divorce to respondent there and when respondent refused to go his in-law house for medical examination then only she has decided to opt for divorce her husband and recorded its finding that no cruelty has been done with the appellant, therefore, answered issue No. 1 and 2 against the appellant. The learned trial Court has failed to appreciate that in matrimonial matters the strict law of evidence is not applicable and the cruelty can be proved on the principle of probabilities. The learned trial Court has failed to appreciate that in matrimonial matters the strict law of evidence is not applicable and the cruelty can be proved on the principle of probabilities. Thus, the findings recorded by the learned trial Court that cruelty have not been proved by the appellant is contrary to the law laid down by the Hon’ble Supreme Court in case of Smt. Roopa Soni vs. Kamalnarayan Soni, reported in AIR 2023 SCW 4186 has held as under in paragraph 10 to 12:- “10. On the question of burden in a petition for divorce, burden of proof lies on the petitioner. However, the degree of probability is not one beyond reasonable doubt, but of preponderance. 11. In Dr. N.G. Dastane v. Mrs. S. Dastane, (1975) 2 SCC 326 , it was held: “25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature. 26. Neither Section 10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor Section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is “satisfied” on matters mentioned in clauses (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word “satisfied” must mean “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt”. Section 23 does not alter the standard of proof in civil cases. 27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a “matrimonial offence”. Section 23 does not alter the standard of proof in civil cases. 27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a “matrimonial offence”. Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases.” 12. While quoting the aforesaid decision with respectful approval, we would like to clarify that the decision rendered in Bipin Chander Jaisinghbhai Shah v. Prabhawati1, 1956 SCR 838 , is not a proposition to hold that the proof required from a petitioner in a matrimonial case alleging cruelty is of beyond reasonable doubt, and not of preponderance of probability. The Court in Bipin Chander (supra) was dealing with a case of desertion, and therefore, more onus was fixed on the person who asserts it. The Court is not deciding and adjudicating an offence, when a petition for divorce is a civil remedy.” 23. Again Hon’ble the Supreme Court in Maya Gopinathan vs. Anoop S.B. & another (In SLP (Civil) No 133398 of 2022 decided on 24-4-2024 has held that in the matrimonial matters standard of proof would be preponderance of probability and not beyond reasonable doubt at para 19 and 20 as under :- 19. A bench of two Hon'ble Judges of this Court [of which one of us (Hon'ble Sanjiv Khanna, J.) was a member] in a decision of recent origin in Roopa Soni v. Kamalnarayan Soni, applied the ratio of the decision in Dr. N.G. Dastane (supra) while reiterating that the standard of proof for disputes in the matrimonial sphere would be preponderance of probabilities and not beyond reasonable doubt. 20. Law is well-settled that inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. N.G. Dastane (supra) while reiterating that the standard of proof for disputes in the matrimonial sphere would be preponderance of probabilities and not beyond reasonable doubt. 20. Law is well-settled that inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. Since the mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole, there must be evidence - direct or circumstantial - to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial, from which to infer the other fact which it is sought to establish. In some cases, the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases, the inferences do not go beyond reasonable probability. If there are no positive proved facts - oral, documentary, or circumstantial - from which the inferences can be drawn, the method of inference would fail and what would remain is mere speculation or conjecture. Therefore, when drawing an inference of proof that a fact in dispute is held to be established, there must be some material facts or circumstances on record from which such an inference could be drawn. In civil cases including matrimonial disputes of a civil nature, the standard of proof is not proof beyond reasonable doubt 'but' the preponderance of probabilities tending to draw an inference that the fact must be more probable. 24. Learned trial court has failed to see that as per Section 13(1)(ia) of the Act, 1955 has got no fixed meaning and therefore, gives a very wide discretion to the court to apply it library and contextually what is cruelty in one case may not be the same for another person. It has to be applied from person to person while taking note of the attending circumstances. In light of that principle if the facts of this case are considered, it is proved that by concealing the fact of illness of epilepsy the marriage was solemnized which may cause fear in the mind of appellant to start her matrimonial life with the respondent as such, it also falls within the ambit of cruelty. In light of that principle if the facts of this case are considered, it is proved that by concealing the fact of illness of epilepsy the marriage was solemnized which may cause fear in the mind of appellant to start her matrimonial life with the respondent as such, it also falls within the ambit of cruelty. The appellant in her evidence has categorically stated about the medical condition of the respondent during rituals at the time of marriage which was not rebutted by the respondent by placing on record the video or photographs of the functions. The report Ex.D/1 was not related to the date of marriage i.e. 28.06.2020. It pertains to subsequent period which is required to be supported by the opinion of the Doctor but no such attempt was made by the respondent to rebut the same. Thus, appellant has faced with the mental cruelty by performing the marriage by concealing the medical condition of the respondent. 25. The Hon’ble Supreme Court in case of Smt. Roopa Soni vs. Kamalnarayan Soni, reported in AIR 2023 SCW 4186 has held as under. “5. The word ‘cruelty’ under Section 13(1)(ia) of the Act of 1955 has got no fixed meaning, and therefore, gives a very wide discretion to the Court to apply it liberally and contextually. What is cruelty in one case may not be the same for another. As stated, it has to be applied from person to person while taking note of the attending circumstances. 6. In Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 this Court sufficiently sets out: “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. Xxx xxxx xxx 25. After so stating, this Court observed in Shobha Rani case [ (1988) 1 SCC 105 : 1988 SCC (Cri) 60] about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that: (SCC p. 108, para 5) “5. … when a spouse makes a complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. It has been observed that: (SCC p. 108, para 5) “5. … when a spouse makes a 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.” 26. Their Lordships in Shobha Rani Case 1988 SCC (Cri) 60] referred to the observations made in Sheldon v. Sheldon [1966 P 62 : (1966) 2 WLR 993 : (1966) 2 All ER 257 (CA)] wherein Lord Denning stated, “the categories of cruelty are not closed”. Thereafter, the Bench proceeded to state thus: (Shobha Rani case [ (1988) 1 SCC 105 : 1988 SCC (Cri) 60], SCC p. 109, paras 5-6) “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 Reid observed in Gollins v. Gollins [ 1964 AC 644 : (1963) 3 WLR 176 : (1963) 2 All ER 966 (HL)] : (All ER p. 972 G-H) ‘… 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.’ xxx xxx xxx 32. In Samar Ghosh v. Jaya Ghosh [ (2007) 4 SCC 511 ], this Court, after surveying the previous decisions and referring to the concept of cruelty, which includes mental cruelty, in English, American, Canadian and Australian cases, has observed that: (SCC pp. 545-46, paras 99-100) 99. We are dealing with this man or this woman.’ xxx xxx xxx 32. In Samar Ghosh v. Jaya Ghosh [ (2007) 4 SCC 511 ], this Court, after surveying the previous decisions and referring to the concept of cruelty, which includes mental cruelty, in English, American, Canadian and Australian cases, has observed that: (SCC pp. 545-46, paras 99-100) 99. … The 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 the 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 straitjacket 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….” (emphasis supplied) 7. We would like to emphasize that an element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce. Section 13(1) of the Act of 1955 sets contours and rigours for grant of divorce at the instance of both the parties. Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudin-arianism. 8. Even with such a liberal construction of matrimonial legislations, the socio-economic stigma and issues attached to a woman due to divorce or separation are raised. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudin-arianism. 8. Even with such a liberal construction of matrimonial legislations, the socio-economic stigma and issues attached to a woman due to divorce or separation are raised. Justice O. Chinnappa Reddy, in his concurring opinion in Reynold Rajamani and Another v. Union of India and Another, (1982) 2 SCC 474 (see paragraph 14), took note of the position of women in a marital relationship and the consequent social and economic inequalities faced by the female spouse in view of divorce. The resultant stigmatization hinders societal reintegration, making a woman divorcee socially and economically dependent. Courts must adopt a holistic approach and endeavor to secure some measure of socio-economic independence, considering the situation, case and persons involved. An empathetic and contextual construction of the facts may be adopted, to avert the possibilities of perpetuating trauma - mental and sometimes even physical - on the vulnerable party. It is needless to say that the courts will be guided by the principles of equity and may consider balancing the rights of the parties. The Court, while applying these provisions, must adopt ‘social-context thinking’, cognisant of the social and economic realities, as well as the status and background of the parties. 9. This concept of “social justice adjudication” has been elaborately dealt with by this Court in Badshah v. Urmila Badshah Godse and Another, (2014) 1 SCC 188 : ( AIR 2014 SC 869 ). “14. Of late, in this very direction, it is emphasised that the courts have to adopt different approaches in “social justice adjudication”, which is also known as “social context adjudication” as mere “adversarial approach” may not be very appropriate. There are number of social justice legislations giving special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently: “It is, therefore, respectfully submitted that ‘social context judging’ is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Prof. Madhava Menon describes it eloquently: “It is, therefore, respectfully submitted that ‘social context judging’ is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication.” [Keynote address on “Legal Education in Social Context” delivered at National Law University, Jodhpur on October 12, 2005. 26. Thus, the learned trial Court has committed illegality in recording its finding that appellant has failed to prove the cruelty committed by the respondent beyond reasonable doubt and has illegally dismissed the suit for grant of decree of divorce. From the evidence and materials on record it is quite vivid that the marriage was solemnized by the concealing the fact about the illness of the respondent which definitely gives short of mental agony and torture to the appellant regarding her matrimonial life which falls within the ambit of cruelty as provided under Section 13(1)(ia) of the Hindu Marriage Act for grant of decree of divorce. Thus, the judgment and decree passed by the learned trial Court dated 20.02.2022 deserve to be set aside and accordingly it is set aside. 27. Consequently, the marriage solemnized between the appellant and the respondent on 28.06.2020 deserves to be dissolved, accordingly it is dissolved. So far as return of Shtridhan which has been given to the appellant at time of marriage by the parents of both the parties are Shtridhan of the appellant which she is entitled to take back. 28. The issue regarding Shtridhan has recently has come up for consideration Hon’ble the Supreme Court in Maya (supra) wherein the Hon’ble Supreme Court has held in para 21 and 25 which read as under:- “21. 28. The issue regarding Shtridhan has recently has come up for consideration Hon’ble the Supreme Court in Maya (supra) wherein the Hon’ble Supreme Court has held in para 21 and 25 which read as under:- “21. The facts are clear that the appellant did not lodge any complaint of criminal breach of trust but by initiating civil proceedings, sought return of money equivalent to her stridhan property which stood lost forever. This Court in Rashmi Kumar v. Mahesh Kumar Bhada, [a decision by a bench of three Hon'ble Judges of this Court on a reference made by a bench of two Hon'ble Judges, who considered it necessary that a fresh look at the view expressed in a previous decision of three Hon'ble Judges in Pratibha Rani v. Suraj Kumar, be had], after scrutiny of several treatises and precedents had the occasion to observe in paragraph 10 that the properties gifted to a woman before marriage, at the time of marriage or at the time of bidding of farewell or thereafter are her stridhan properties. It is her absolute property with all rights to dispose at her own pleasure. The husband has no control over her stridhan property. He may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhan property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof. It was also observed in paragraph 13 that to make out an offence under section 406 of the Indian Penal Code, 1860, what was required to be proved was entrustment of stridhan property with dominion over such property to the husband or to any member of his family as well as dishonest misappropriation of or conversion to his own use the said property by the husband or such other member of his family. Admittedly, we are not concerned with any criminal offence and, therefore, proof on balance of probabilities would be sufficient. 25. Secondly, the High Court held the appellant's failure to lead documentary evidence to support purchase of 89 sovereigns of gold, which she allegedly brought with her to the matrimonial home, as fatal. To our mind, the approach is entirely indefensible. Admittedly, we are not concerned with any criminal offence and, therefore, proof on balance of probabilities would be sufficient. 25. Secondly, the High Court held the appellant's failure to lead documentary evidence to support purchase of 89 sovereigns of gold, which she allegedly brought with her to the matrimonial home, as fatal. To our mind, the approach is entirely indefensible. The version of the respondents with regard to retention of custody of jewellery by the appellant has been noticed in paragraph 10 (supra). Although we accept as probable that the jewellery had not been weighed, there is no escape from the conclusion that the respondents did admit the appellant having brought with her sufficient jewellery constituting stridhan. The dispute was raised firstly with regard to quantum and secondly, with regard to custody. How far is the version of the first respondent believable that on the night of the wedding, the appellant put her jewellery in an almirah and locked the same, with the keys being kept below the pillow? To find an answer, we pose a question to ourselves: for a person of ordinary prudence, is it reasonable to expect that a woman, who is freshly married and is intending to live in the same house and under the same roof with her husband, to keep her personal belongings like jewellery, etc. under her own lock and key, thus, showing a spirit of distrust to the husband right after the moment she gets married? The answer cannot but be in the negative. On the contrary, the circumstance that the husband had volunteered to take custody of the jewellery for safekeeping with his mother appears to be more plausible than the rival version considering the probabilities that are associated with similar such situations. The very concept of marriage rests on the inevitable mutual trust of the spouses, which conjugality necessarily involves. To assume that the appellant from day one did not trust the first respondent is rather improbable. The High Court, thus, failed to draw the right inference from facts which appear to have been fairly established. That apart, we have neither been shown nor do we know of any binding precedent that for a claim of return of stridhan articles or money equivalent thereof to succeed, the wife has to prove the mode and manner of such acquisition. That apart, we have neither been shown nor do we know of any binding precedent that for a claim of return of stridhan articles or money equivalent thereof to succeed, the wife has to prove the mode and manner of such acquisition. It was not a criminal trial where the chain of circumstances had to be complete and conclusively proved, without any missing link. Undisputedly, the appellant had brought to the matrimonial home sufficient quantum of jewellery, which she wore during the marriage and as is evidenced from photographs being Ext. A3 series; and, having regard thereto, the High Court committed serious error in first doubting and then disbelieving the appellant's version on the specious ground that documents proving acquisition thereof by P.W.2 had not been produced”. 29. From the above stated legal position, it is quite vivid that the appellant is entitled to get the Shtridhan which has been given at the time of marriage to her. The evidence brought on record would clearly demonstrate that when the appellant has gone to her parents house the entire jewelries were taken by respondent’s mother in her custody and no cross-examination to this evidence has been done to disapprove the same. Thus, it is proved that the jewelries of the appellant have been taken by the respondent through his mother which the appellant is entitled to get back. Since, the jewelries are kept back by the respondent the same shall be returned back to the appellant along with cash Rs.7,50,000/- which was given at the time marriage by the appellants parents to the respondent within two months from the date of judgment and decree passed by this Court. 30. Accordingly, the first appeal is allowed. The impugned judgment and decree dated 20-2-2023 passed by the court below is set aside. Consequently, the suit filed by the appellant is allowed. The decree of divorce is passed in favour of the appellant. 31. A decree be drawn up accordingly.