Gajjala Shankar vs Anuradha

D.S.R. Varma, J.—This civil miscellaneous appeal is directed against the judgment dated 10-5-1996, in O.P.No. 29 of 1993 on the file of the learned Subordinate Judge, Nizamabad, filed u/s 13(i)(a) of the Hindu Marriage Act, 1955, for dissolution of the marriage.

The case of the appellant-husband is that his marriage with the respondent-wife took place on 16-5-1990 as per the prevailing Hindu customs and rites. According to him, soon after the marriage, his wife started harassing him, both mentally and physically, and threatened him saying that she would commit suicide and hold him responsible for that. She often used to beat him in public. He states that all his efforts to bring change in the attitude of the respondent, turned futile. Subsequently, the respondent left his company, lodged a complaint against him, his parents and sister u/s 498-A I.P.C. which was numbered as C.C.No. 80 of 1992 on the file of the Judicial Magistrate of First Class, Yellareddy, Nizamabad District, however, the same ended in acquittal by an order, dated 12-11-1993. The appellant got issued a legal notice, dated 5-5-1992, requiring the respondent to agree for mutual divorce, but she did not respond to the same. Hence the appellant filed O.P. seeking dissolution of his marriage with the respondent.

The respondent filed the counter denying the contentions of the appellant averred in the petition.

In support of his case, the appellant examined P.Ws.1 to 5 and marked Ex.A1, certificate copy of the judgment in C.C. No. 80 of 1992 on the file of the Judicial Magistrate of First Class, Yellareddy. The respondent, in support of her case, examined R.Ws.1 to 3 and marked Exs.B1 to B3.

In his evidence as P.W.1, the appellant re-iterated and asserted the averments stated in the petition. P.Ws.2 and 3 deposed that they were the direct witnesses to the alleged harassment meted out by the appellant in the hands of the respondent. P.W.4 spoke about the abusive and unparliamentary language used by the respondent against the appellant. Nothing useful material could be elicited from the cross-examination of the witnesses.

The trial Court, having considered the material available on record, both oral and documentary, eventually held that there was no adequate ground to grant divorce, and dismissed the O.P. Aggrieved by the same, the appellant preferred this appeal.

The learned Counsel for the appellant contends that the fact that the complaint filed by the respondent, u/s 498-A I.P.C., against the appellant and the members of his family, ended in acquittal itself goes to show the conduct of the respondent and the same amounts to subjecting the appellant to ''mental cruelty''. To that effect, he placed reliance upon the judgments in K. Radha Raju Vs. K. Seetharama Raju, and Anagalla Padmalath Vs. A. Sudershan Rao, . He further contends that the respondent abused the appellant in unparliamentary language in public, defaming his image and causing mental agony and hence on that ground alone the appellant is entitled to divorce. In support thereof, he relied upon the judgment in A. Jayachandra Vs. Aneel Kaur, .

In the back ground of the contentions of the learned Counsel for the appellant and also the evidence available on record, the only question that arises for consideration is as to ''whether the trial Court was right in refusing to grant divorce as prayed for by the appellant-husband''.

In this context, it is to be seen the undisputedly C.C. No. 80 of 1992, filed by the respondent against the appellant, his parents and sister, for the offence u/s 498-A I.P.C. ended in acquittal. It is further to be seen that C.C. was of the year 1992 and the order of acquittal was passed in 1993. This Court can take into account the effect of Section 498-A I.P.C. and the differences that arose between the spouses because of the said provision. Subsequently, there was a legislative change making the said provision as compoundable in order to avoid or mitigate the scope of the same being misused.

In normal course, mere filing a case for the offence u/s 498-A I.P.C. by itself may not be a ground sufficient to hold that the said act amounts to cruelty. But in the present case, it has to be seen that the criminal case was lodged against not only the husband but also his parents and sister. As a result of which, the husband and other three people suffered imprisonment for sometime, initially. This would, naturally, prevail upon the social status of anybody, including the persons who are not really guilty of the said offence. As already noticed, in this case, the Court acquittal all the accused of the offence u/s 498-A I.P.C. The trauma and the sense of diffidence suffered by the husband as well as his parents and sister from the date of filing the criminal case till it ended in acquittal could easily be imagined.

In similar circumstances, the Apex Court in A. Jayachandra''s case (supra) observed as under:

"The cruelty may be mental or physical, intentional or unintentional. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. If the cruelty is physical, the Court will have no problem in determining it. It is a question of fact and degree. In physical cruelly, there can be tangible and direct evidence, but in case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and metal effect of incidents that are brought out in evidence. The concept, proof beyond the shadow of doubt, it to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. First, the enquiry must begin as to the nature of 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. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or 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."

It was further observed by the Apex Court that to constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". Conduct has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. However, their lordships further observed that it is rather difficult to define ''cruelty'' or ''mental cruelty''. They also tried to draw a distinction between ''physical cruelty'' and ''mental cruelty''.

In Anagalla Padmalatha''s case (supra), a Division Bench of this Court held that filing a complaint u/s 498-A I.P.C. and also a petition for maintenance u/s 125 Cr.P.C. indicate the intention of the wife as the intention to abandon the matrimonial home permanently. In the instant case also, as already noticed, the wife had filed a criminal case against the husband and her in laws, which was held to be noted proved by the criminal Court and also filed a case of maintenance which appears to have been granted. These two factors basically prove the strong desire of the wife to be dis-associated with the husband and the matrimonial home as a whole and these two circumstances would indicate that she had no real intention to lead happy marital life with the husband.

As pointed out by the Apex Court, every shall difference or reason cannot be a ground to file a petition for divorce. But in the instant case, it is the specific case of the appellant-husband that he was subjected to ''metal cruelty'' and to that effect evidence was also let in the form of testimony of P.Ws.2 to 4. Therefore, from an overall consideration of the evidence of P.W.1, corroborated by that of P.Ws.2 to 4, we are of the view that the appellant-husband could successfully prove the president physical and resultant mental cruelty on the part of the respondent-wife and the facts of filing the criminal case u/s 498-A I.P.C. and the petition u/s 125 Cr.P.C. would demonstrate that she was not a willing party to join her husband.

Mere filing a criminal case u/s 498-A I.P.C. itself may not be a ground for divorce but when it is coupled with the other ground i.e., cruelty which was established successively by the appellant-husband, we deem that it is a fit case to grant divorce to the husband. It is not in dispute that the spouses have been living separately for the past 13 years with the bad taste still on the tongues.

For the foregoing reasons, and in the light of the judgments referred to above, we feel it appropriate to set aside the judgment under appeal.

The judgment under appeal is hereby set aside and the O.P. shall stand allowed. The civil miscellaneous appeal is accordingly allowed. There shall be no order as to costs.