Maya Tiwari (Smt.) vs Ajay @ Baba Shukla

L.C. Bhadoo, J.

By this appeal u/s 19 of the Family Courts Act, 1984, Appellant Smt. Maya Tiwari has questioned the legality and correctness of the judgment and decree dated 21-10-2005 passed by the Principal Judge, Family Court, Raipur, in Civil Suit No. 53-A/2005 whereby learned Judge has dismissed the petition of the Appellant filed u/s 13(1) (a) of the Hindu Marriage Act, 1955 for granting a decree of divorce on the ground of cruelty.

Brief facts necessary for the disposal of this appeal are that the Appellant herein was married with the Respondent herein on 21-06-97 according to Hindu rites & custom. Both the parties are Kanyakubja Brahmin and they are governed by the Hindu law. According to the averments made in the plaint, before marriage the Respondent was asked to send his horoscope. The said horoscope was sent by the father of the Respondent by writing the same on postcard. Based on that the marriage was solemnized. After the marriage when the Appellant went to the house of the Respondent, on the next day, she came to know that the Respondent gave incorrect information regarding his educational qualification, age as also the fact that he is not a Manglik, thereby the Respondent married the Appellant by practicing fraud on the Appellant. The Appellant suffered a mental shock. The Appellant being a Government Officer was not able to tolerate the said fraud. When the Appellant asked the Respondent as to why he has practiced fraud, he replied that now nothing can happen, she has to lead her married life with him. When the Appellant asked the Respondent that she will not be in a position to lead married life with him, the Respondent became angry and started abusing, as a result of which the Appellant suffered more mental agony. After 3 days of the marriage on 24-6-97 when her father arrived Ambikapur in order to take the Appellant to her parental house, she apprised her father about the fraud practiced on them, on which her father asked the Respondent & his father about the fraud practiced by them as to why they have practiced fraud, on which the Respondent and his father simply laughed and did not reply. She returned to Raipur along with her father.

The Appellant was transferred to Ambikapur on 1-9-97. She went to Ambikapur on 2-9-97 in order to join at her new place of posting. When she went to her in-laws'' house, the Respondent and his father said that as to why she has come to Ambikapur to her in-laws'' house on her own, as she has not been brought by them, they asked her to go to the office and remain there. She will not be allowed to stay in the in-laws'' house. Hearing this from the Respondent and his father, the Appellant had suffered mental shock.

After taking charge, she proceeded for one month''s leave and she came back to Raipur. After availing one month''s leave, on 11-10-97 the Appellant herein again went to Ambikapur. When she went to the in-laws'' house, the Respondent asked her that he will not allow her to perform her duties there. He will get her transferred, which shocked the Appellant. The Appellant herein asked him as to why he is behaving in cruel manner, on which the Respondent told her that she is not giving salary to them, she is taking salary to her father''s house & spending salary on her sisters & brothers, then the Appellant replied that in advance she apprised him that sisters & brothers are dependent on her, therefore, she has to maintain them. At that time, he did not say anything that the Appellant will be required to give salary to him. Hearing this, the Respondent said that there is no gain saying in irrelevant discussion. If she wants to remain with him, she has to lead life as per his wishes. Hearing this, the Appellant felt that how she will be able to lead her matrimonial life with this person because he has his eyes on her money.

From 11-10-97 to 26-10-97 she remained in a rented house, which was taken from one Shiv Kumar Mishra. Thereafter, she again took leave and returned back to Raipur. On 25-10-97, the Respondent gave affidavit attested by Notary Shivram Prasad Gupta in which he admitted that he does not want to lead matrimonial life with the Appellant. In the meantime, the Appellant moved before the Department for her transfer on account of physical and mental cruelty meted out to her by the in-laws. Thereafter, she was transferred to Raipur.

It has further been averred that when the Appellant filed a divorce petition at Raipur and the Respondent was summoned in that, he appeared before the Court on 27-2-2001. He came to the office of the Appellant on 28-2-2001 on the pretext of talking to the Appellant. He called her outside the office where he behaved with her in an objectionable manner. The Appellant was threatened saying that he will not allow her to live peacefully and he will take her to Ambikapur. He will not allow her to take divorce. He will take her to Ambikapur forcefully. He will see who will protect her. The Appellant was feeling danger to her life, as the Respondent is a man of criminal character.

The said petition was contested and resisted by the Respondent herein. He denied all the allegations by way of written statement filed in response to the divorce petition.

Based on the pleadings of the parties, learned Family Judge framed 2 issues to the effect that (1) whether the Respondent subjected the Appellant herein to cruelty, therefore, she is entitled for decree of divorce on the ground of cruelty; (2) as the divorce suit filed by the Appellant herein bearing No. 95-A/98 has been dismissed on 17-7-2000, therefore, the Appellant herein is not entitled to file this suit. In order to substantiate the averments made in the plaint, the Appellant herein examined herself as PW-1, PW-2 Prateek Khare, PW-3 Shrinivas Rao, PW-4 Chandrashekhar Tiwari, father of the Appellant and PW-5 Chandraprabhas Tiwari. On the other hand, the Respondent herein examined himself in defence.

Learned Judge, Family Court, after hearing learned Counsel for the respective parties dismissed the petition filed by the Appellant herein and held that the Appellant herein has not been able to prove cruelty and that as the Appellant had already filed a petition for divorce, that has been dismissed earlier, therefore, on account of this fact, this petition is not maintainable.

We have heard learned Counsel for the parties.

As far as ground of cruelty taken by the Appellant herein that the Respondent had married her by practicing fraud on her by telling incorrect educational qualification, age and by giving wrong horoscope showing that he is not a Manglik, whereas, in fact, he is Manglik, is concerned, this ground was already taken by the Appellant herein in an earlier petition bearing No. 95-A/98 and same was dismissed after trial on 17th July 2000, therefore, the Appellant herein was not entitled to agitate this ground again. To this extent, learned Counsel for the Appellant has very fairly conceded that this point cannot be reagitated, as same has already been adjudicated & no appeal has been filed by the Appellant herein against that judgment and decree.

Now, coming to the other grounds of cruelty that on transfer the Appellant herein went to Ambikapur on 2-9-97 in order to join her services and when she went to her in-laws'' house, the Respondent and his father did not allow her to enter the house and asked her to remain in the office & she will not be allowed to remain in the in-laws'' house. Thereafter, she proceeded on leave. When on 11-10-97, she again went to the house of the Respondent, the Respondent did not allow her to enter the house and said that she will not be allowed to perform her duties. He will get her transferred, thereby he subjected the Appellant to mental cruelty. The Respondent further said that she is not giving salary to him, she is spending her salary on brothers and sisters. The Respondent further said that if she wants to live with him, she has to live with him as per his wishes. Therefore, per force the Appellant herein remained in the rented house from 11.10.97 to 26.10.97 in the house of Shiv Kumar Mishra. The Respondent is a man of criminal nature, on 28.2.2001 the Respondent came to the office of the Appellant herein, called her outside the office, he behaved with her in an objectionable manner and threatened her that he will not allow her to live peacefully, he will take her to Ambikapur forcefully, he will not allow her to take divorce, all these allegations have been denied by the Respondent herein by way of filing written statement. Learned Principal Judge, Family Court after evaluating the evidence of the respective parties, reached to the conclusion that the Appellant herein has not been able to prove allegation regarding cruelty meted out to her by the Respondent and dismissed the petition.

In divorce cases, the ground of cruelty came up for consideration before the Apex Court and in number of cases, the Apex Court gave its finding defining cruelty. In the matter of Shobha Rani v. Madhukar Reddi, (sic) SCC 105 the Apex Court while examining the concept of cruelty held that:

"47. The word "cruelty" has not been defined in the Hindu Marriage Act. It has been used in Section 13(1) (i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or 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, it is a question of fact and degree. If it is mental the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account in 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. The absence of intention should not make any deference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment.

The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits.

The Court went on to observe as under: (SCC pp. 108-09, para 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 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. 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 (sic) 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 (sic) realm of cruelty.

In the matter of V. Bhagat v. D. Bhagat (sic) the Apex Court held that:

This Court observed as under (SCC p. 347, para 16) 16. Mental cruelty in Section 13 (1) (i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the Petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively.

What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

In the matter of Naveen Kohli v. Neelu Kohli, (sic) in para-51 the Apex Court held that:

The word "cruelty" has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the Petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The. allegation that members of the Petitioner''s family are lunatics and that a streak of insanity runs through his entire family is also an act of mental cruelty.

In the matter of Savitri Pandey Vs. Prem Chandra Pandey, the Apex Court held that:

Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the Petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the Petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the Petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.

In the matter of Praveen Mehta Vs. Inderjit Mehta, the Apex Court has defined cruelty as under. (SCC pp. 716-17, para-21).

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In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the Petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.

In the matter of A. Jayachandra Vs. Aneel Kaur, a three-Judge Bench of the Apex Court observed that: (SCC pp. 29-31, paras 10-14)

The expression ''cruelty'' has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amount to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matter of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, the courts are required to probe into the mental process and the mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

The expression ''cruelty'' has been used in relation to human conduct or 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. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. 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.

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''. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties has deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. 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.

The court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse''s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty. it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other''s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. The courts do not have to deal with ideal husbands and ideal wives. It has to deal with a particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to the matrimonial court.

In the light of the above principles, if we scrutinize the material and evidence available on record, it is admitted position that prior to this petition, the Appellant herein had already filed a divorce petition against the Respondent bearing No. 95-A/98 which came to be decided on 17th July, 2000 in which the Appellant herein took ground of fraud that the Respondent and his father by giving incorrect information regarding educational qualification, age & that the Respondent is not Manglik, the Respondent got himself married with the Appellant herein the practicing fraud. Learned Principal Judge after discussing evidence reached to the conclusion that the Appellant herein has failed to establish allegation against the Respondent and dismissed the divorce petition, that judgment attained finality, as no appeal has been preferred by the Appellant against the judgment. Therefore, that cannot be reagitated by filing subsequent divorce petition.

The other ground of cruelty which has been taken in this petition also pertains to the same period i.e. 24-6-97,3-9-97 and 11-10-97 when the Appellant herein filed earlier petition. The ground of cruelty for divorce petition was already available to the Appellant herein as the act of the Respondent regarding cruelty meted out to the Appellant was already available at the time of filing of the earlier divorce petition. Why this ground was not taken by the Appellant herein has not been explained by the Appellant. Had it been so, the Appellant in the ordinary course of nature ought to have taken the ground Of cruelty in the earlier petition. Therefore, on the ground of constructive res judicata the Appellant was not within her right to file subsequent suit for divorce. Learned Principal Judge in para-15 of the judgment has mentioned that the Appellant wrote a letter on 8-5-97 in which she mentioned that no demand was made by the father of the Respondent. She further wrote that Shailjadi informed that the Respondent has no bad habits and he is a simple & plain man, thereby when the Appellant herself admitted that no demand was raised at the time of marriage, as such, allegation of the Appellant cannot be treated as true. It has further been observed that from letter dated 7-2-97, it is established that the father of the Appellant herein accepted the Respondent and his family as good. The family of the Appellant was impressed by the behaviour of the family of the Respondent. Even before the marriage, the Respondent visited the house of the Appellant, after discussion and everything, after matching horoscope, the marriage was arranged. In this case also the Appellant has not been able to adduce legal and clinching evidence, which may probabilize that the allegations raised by her in this petition are true.

As per the allegations, the Respondent did not allow the Appellant to remain with him in his house at Ambikapur, therefore, per force, she has to hire a house for her residence, but she has not produced landlord. She has simply produced rent receipt. Moreover, no other witness has been examined to show that she remained in rented house on account of the fact that she was not allowed by the Respondent to reside with him. In order to substantiate her allegation, atleast she could have produced the witnesses of her Office, where she was serving because they were the persons to whom she must have explained about the conduct of the Respondent. Particularly what have been alleged by the Appellant have been denied by the Respondent. PW-4 Chandrashekhar Tiwari, father of the Appellant herein, has stated that the Appellant remained in a rented house for 20-22 days, during that period, the Respondent and his family members used to quarrel with the Appellant, but the Appellant has not stated so, nor she has examined any witness of the vicinity to prove that the Respondent and his family members used to come to her rented house and quarrel with her. In para 10 of her evidence the Appellant has stated that her marriage with the Respondent has not been consummated. This conduct of the Appellant shows that even when she went to the house of the Respondent after marriage, she did not allow the Respondent to have physical relation with her. Therefore, the Appellant has failed to establish by adducing legal evidence that the Respondent did not allow her to stay with him at his residence.

As far as allegation regarding misbehaviour by the Respondent on 28-2-2001 that the Respondent called the Appellant out of the office, misbehaved with her and threatened her, and she informed her colleague is concerned, PW-2 Prateek Khare has not stated anything about this fact. Moreover, he has staed that the Appellant informed her that her husband is not keeping her well. He has not stated that the Appellant informed her that her husband did not allow her to reside in his house, therefore, she took rented house at Ambikapur. PW-5 Chandraprabhas Tiwari has stated in his evidence that he had not heard anything about abusing by the Respondent in the office on 28-2-2001. As per the judgment of the Apex Court in the case of Praveen Mehta (supra), in case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the Petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other. Even if allegation levelled by the Appellant herein that the Respondent came to her office and misbehaved is taken to be true, it is but natural that when the Respondent came to know about filing of the divorce petition, feeling harassed he must have come and met her & must have asked something about filing of divorce petition against him. This isolated instance, in the facts and circumstances of the case, cannot be treated as cruelty.

As far as criminal character of the Respondent is concerned, only one criminal case was pending, that cannot be termed that he is a man of criminal nature. Moreover, evidence of the Appellant is also contradictory. At one stage she is saying that the Respondent is not allowing her to reside with him, on the contrary, she has stated that when she filed divorce petition, the Respondent came and said that he will not allow her to take divorce, he will take her to Ambikapur. During the pendency of this appeal, efforts were made by learned Principal Judge to settle the matter amicably, they were persuaded on 5-6-2005. When learned Principal Judge made an attempt to get the matter settled by way of compromise, the Appellant herein was not ready to accept that. The father of the Appellant has stated in his evidence that the Appellant published notice regarding her marriage. When so far divorce decree was not granted how the Appellant was trying to arrange 2nd marriage, this fact also shows that the Appellant has not come with true facts. It appears that the Appellant being a Government Officer is not feeling convenient in the company of the Respondent that is why she has filed this petition.

For the foregoing discussion, we are of the considered opinion that leaned Principal Judge, Family Court has rightly observed that the Appellant herein has failed to prove ground of cruelty or mental cruelty. The finding of learned Principal Judge, Family Court is based on sound reasoning after evaluation of the material and evidence available on record.

In the result, we do not find any illegality or infirmity in the finding of learned Principal Judge, Family Court. The appeal being devoid of merit is liable to be dismissed and it is hereby dismissed.