Basant Kumar Jha vs Smt Mithlesh Jha D/o Shri Jagdish nandan Sharma

The present misc. appeal is filed by appellant-husband

assailing the judgment & decree dated 29.01.2005 passed by ld.

Family Court, Ajmer, wherein the application filed by the husband

under Section 13(1) of the Hindu Marriage Act seeking decree of

divorce on the ground of cruelty, has been dismissed.

The facts in nutshell are that the appellant-husband filed a

petition under Section 13 of the Hindu Marriage Act for dissolution

of marriage on the ground of cruelty wherein it was averred that

he was married to respondent on 02.12.1988 at Ajmer as per

Hindu rites and out of the said wedlock, two children (one son and

one daughter who were aged 11 and 7 years at the time of filing

application) were born.

The appellant pleaded in his application that for sometime,

the wife behaved normally but on being appointed as Senior

Teacher in Government service, her behaviour changed. She

started quarreling with parents of the appellant and also refused

to attend daily household work on the pretext of getting tired. Day

by day her behaviour became more atrocious as she started

harassing the parents of the appellant. On 09.05.2001, she left

the matrimonial home along with her clothes and ornaments after

insulting the mother of the appellant while the appellant was out.

She also retained both the children with her and thereafter, she

never returned. The appellant tried to persuade her but it was of

no consequence. Ultimately, the appellant got a notice dt.

14.05.2001 served on her through his counsel asking her come

back and to restore the matrimonial bond. The respondent sent a

reply making wild allegations against the husband and his parents

and also refused to join the husband. Thus, the appellant had to

file the application for a decree of dissolution of marriage on the

ground of cruelty against the wife.

The respondent-wife filed reply and denied all the allegations

of cruelty and averred that she had to join service out of the

pressure from her in-laws. The appellant remained posted out of

Ajmer in the meanwhile for some period, and lastly, he was posted

in Ajmer in the year 1996. It was also averred that the appellant

did not have cooperative attitude and she was always insulted and

harassed. According to the respondent, there had been some

exchange of hot words on 09.05.2001 while she was getting ready

for the school. She was pushed, dragged and even beaten with

shoes and as such, she felt insulted, apprehensive and left for the

house of her sister. It was further averred by the respondent that

she was herself a victim of atrocities on account of the husband

being a man of stubborn, angry and assaulting nature. She also

alleged that an application was also made to the court for mutual

divorce on 09.10.2001 on account of pressure on her which was

later on got withdrawn by her.

On the basis of the pleadings of the parties, the following

issues were framed-"VERNACULAR MATTER OMITTED"

Both the parties examined themselves in support of their

averments and produced no other witness.

The Family Court on the basis of evidence on record has

decided issue no.1 regarding cruelty against the appellant and

dismissed the petition for dissolution of marriage.

The learned counsel for the appellant has urged that the

learned Family court has seriously erred in deciding the issue of

cruelty against the appellant, whereas there was enough material

and evidence to show that respondent had caused great mental

torture to the appellant by her various acts.

The learned counsel for the appellant has urged that in spite

of specific instances relating to cruelty, the learned Family Court

has passed the impugned order on surmises and conjunctures.

The learned counsel further urged that apart from not looking

after mother of the appellant, the respondent right from the

beginning had used pressure for living separately and the

respondent by replying to the notice served on her for joining the

matrimonial home, levelled reckless allegations against him

branding as a gambler, father of the appellant was alleged to

indulge in selling liquor in open market meant for armed personnel

and further levelled reckless allegations of demand of dowry,

insulting, etc.

The learned counsel for the appellant has submitted that the

respondent-wife had moved application along with the appellant

under Section 13-B of the Hindu Marriage Act on 12.10.2001

seeking divorce on mutual consent and she had made her

intention clear of not to stay and live with the appellant, the

appellant has alleged that the respondent later on changed her

mind to harass the appellant by withdrawing her application.

Learned counsel for the appellant has further argued that the

respondent had left for no reason her matrimonial home on

09.05.2001 and thereafter, she never came back and as such, the

long period of continuous separation, does not serve the sanctity

of marriage and it shows scant regards for the feelings and

emotions of the parties and in such a situation, it amounted to

mental cruelty.

Learned counsel for the appellant has relied upon the

judgments of apex Court in the case of Samar Ghosh Vs. Jaya

Ghosh, 2007(4) SCC 511, Naveen Kohli Vs. Neelu Kohli 2006 (4)

SCC 558, Satish Sitole Vs. Smt. Ganga, 2008(7) SCC 734 as well

as judgments of this Court in the case of Monika Vs. Chandra

Prakash (D.B.Civil Misc. Appeal No.2239/2013), decided on

15.05.2015 and Alka Gupta Vs. Anil Kumar Sharma (D.B.Civil

Misc. Appeal No.1047/2015), decided on 02.06.2016.

Per contra, the learned counsel for the respondent-wife has

supported the impugned order passed by the learned Family

Court. The learned counsel has urged that the court below on the

basis of material available on record, has correctly come to the

conclusion that various alleged acts of cruelty were not enough to

prove the basic requirement of proving the ground of mental

cruelty and as such, it has been urged that the impugned

judgment does not require any interference by the Court and the

said judgment is legally tenable.

We have scanned the record and considered the rival

submissions urged at the bar.

From the perusal of the deposition of the appellant, the

situation becomes apparent that the respondent-wife joined

government service as Senior Teacher and relations between the

husband and the wife became strained. The incidents relating to

not taking care of mother of the appellant on two crucial occasions

of medical treatment reveal that the respondent-wife was

reluctant to take care of his mother-in-law. This deposition of the

appellant further shows that the respondent had left the

matrimonial home on 09.05.2001 at her will along with her

children, jewellry, clothes, etc.

A notice was given by the appellant to the respondent

through his advocate asking her to return and restore matrimonial

ties and the same was admittedly replied by the respondent where

she refused to return back and made allegations against the

appellant of demand of dowry, assaulting her and indulging in

gambling. The respondent further made an allegation that father

of the appellant indulged in selling liquor meant for armed

personnel on higher rates in open market.

The said fact was admitted by the respondent in her cross-

examination and she tried to explain that these facts were made

part of the reply by her advocate without her notice while she

wanted to live with the appellant.

In opinion of this Court, the reckless allegation about the

father of the appellant and against appellant himself, definitely

lead to a situation where a person is charged of allegations and

imputations, levelled without any credence.

It will be relevant to quote the extract of cross-examination

of the respondent, which is as under:-

"VERNACULAR MATTER OMITTED"

The close scrutiny of the evidence reveal that the appellant

was able to prove that because of stubborn behaviour of the

respondent, her lack of cooperation in discharging her duty to take

care of mother of the appellant at crucial time of illness,

continuous pressure to live separately, her views to lead an

independent life and construction of separate house at Ajmer,

levelling reckless allegations against the appellant and his father

in reply to the notice, were all necessary ingredients to prove the

ground of cruelty on which the appellant ought to have been

granted a decree of divorce.

Cruelty, which is a ground for dissolution of marriage, is

willful and unjustifiable conduct of such character as to cause

danger to life, limb or health, bodily or mental or as to give rise a

reasonable apprehension of such a danger. The mental cruelty falls

within purview of a matrimonial wrong. The cruelty has been used

in relation to human conduct and human behaviour. It is the

conduct in relation to or in respect of matrimonial duties and

obligations. Cruelty is a course or conduct of one, which is

adversely affecting the other. Cruelty can be intentional or

unintentional. Cruelty in matrimonial life may be of unfounded

variety, which can be subtle or brutal. It may be by conduct,

words, gestures, by a mere silence, violent or non-violent.

The various decisions of the Apex Court lay down the

principle of adjudging the cruelty. The Apex Court in the case of

Narendra Vs. K.Meena [(2016) 9 Supreme Court Cases

455], while dealing with the issue of mental cruelty by leveling

baseless allegation without foundation has found it to be a very

serious nature and it has been held that such kind of baseless and

false allegation surely can be a cause for mental cruelty. The Apex

Court has held in the said judgment as under:-

"15. With regard to the allegations about an extra- marital affair with maid named Kamla, the re- appreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had levelled allegations with regard to an extra-marital affair of the appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one''s character of having an extra-marital affair is quite torturous for any person - be it a husband or a wife.

We have carefully gone through the evidence but we could not find any reliable evidence to show that the appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence

that would suggest that there was something like an affair of the appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra- marital life to be quite serious and that can surely be a cause for metal cruelty.

This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, has held as under:-

"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."

The Court finds that the allegations of atrocious and insulting

behaviour of the respondent with the appellant and his mother

were causes of strained relations. This is substantiated from the

fact that the respondent had herself made an allegation that in

sequence of continuous atrocities to her, she was pushed, beaten

and dragged out of the house by the appellant on 09.05.2001. The

respondent has choosen not to disclose the actual reason behind

the said incident and she meant to say that it happened on some

inconsequential pretext. This further shows that the respondent

had been responsible for her atrocious allegations, actions and

behaviour amounting to cruelty.

This Court is of the view that the learned Family Court has

failed to decide the issue of cruelty in right perspective.

Accordingly, the finding of learned Family Court on issue nos. 1 &

2 is liable to be set aside and the marriage of the appellant with

the respondent is liable to be dissolved.

Consequently, the appeal filed by the appellant is allowed

and the judgment & decree dated 29.01.2005 passed by ld. Family

Court, Ajmer is set aside. Their marriage solemnized between the

parties on 02.12.1988 stands dissolved and the appellant-husband

is held entitled for the decree of divorce. Registry to do needful.

No costs.