Suresh Kumar vs Smt. Kanti
2013 Latest Caselaw 3397 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 14
 

 
Case :- FIRST APPEAL No. - 39 of 2011
 

 
Appellant :- Suresh Kumar
 
Respondent :- Smt. Kanti
 
Counsel for Appellant :- Dharmendra Trivedi
 
Counsel for Respondent :- Umesh Chandra Srivastava
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

Heard learned counsel for the parties and perused the records.

The instant appeal has been preferred against the judgment and decree dated 30.04.2011, passed by learned Additional District Judge, Court No.8, Raebareli, in Regular Suit No.781 of 2009, by which the petition of the appellant for divorce has been rejected.

Admitted facts between the parties are that they were married with each other on 28.02.1999 and three children were born out of the said wedlock; the wife is the only daughter of her parents and her father is posted as Deputy Divisional Engineer, Telecommunication Department; after marriage the wife completed B.T.C. Training and got the post of Assistant Teacher in the year 2001 in Primary School, Bahadurpur, District Raebareli and since then her behaviour with her husband took a vertical change; at the instigation of wife the husband was compelled to separate from his family and lived in a separate house in Jawahar Vihar Colony from 26.01.2004 to July, 2004; the wife and her parents used to insult the husband by saying that he is getting hardly Rs.2500/- and whenever the husband used to stay with his wife out of affection with his children, he was being compelled by the father of the wife to get out during nights; wife is not living with her husband since 25.06.2006 and has deserted her husband and is living with her parents which is causing mental and physical cruelty to her husband; the suit under Section 13 of Hindu Marriage Act was filed which was contested by wife by filing written statement paper no.12-A1. She admitted the marriage, birth of children and the factum of separate living by the couple in Jawahar Vihar Colony, Raebareli since January, 2004 in a rented accommodation, but has pleaded that the husband demanded rupees two lakhs from her father for doing some business and due to non-fulfillment of this demand, the husband started committing mental and physical cruelty and threatened to kill and used to abuse; the wife herself used to bear the household expenses; in July, 2004 the husband beat his wife and left her along with her children in  the rented accommodation and, thereby, the wife was compelled to shift from that accommodation to her father's place where she is living and since then  the husband did not take care; she is fearful of being killed if rupees two lakhs are not paid to her husband; all the three children of the couple are studying in Modi Public School and one son is ill since 2006 and he is being treated at P.G.I. Lucknow; the husband is posted as Clerk in District Panchayat Office, Raebareli for the last one and half years; the husband is a clever person; the proceedings under Section 9 of Hindu Marriage Act are also pending between the parties. Both the parties led evidence in support of their cases. The learned Trial Court rejected the petition after hearing the parties against which this appeal has been preferred.

At the outset it may be mentioned here that during the pendency of this appeal this Court made serious efforts for reconciliation and matter was referred to Mediation and Conciliation Centre of this Court vide order dated 09.12.2011, which has failed. Reconciliation efforts were also made in the Chamber but the wife is adamant not to live with her husband, at the instance of her father.

Admitted facts between the parties are that the respondent/wife studied B.T.C. and has got the appointment as Assistant Teacher in the primary school and the respondent is  now a Clerk in District Panchayat Office. The appellant has stated in his statement before learned Trial Court that after getting the job his wife, along with children, is not living with him. This statement of the appellant has been corroborated by the statement of his father who has also stated that his son was living happily with his wife and children together and the litigation has started after his daughter in law has got the job; his son and daughter in law never quarreled with each other; his daughter in law is still respectful to him. Another witness Prem Shanker has deposed that the wife has behaved with her husband in an insulting manner and in the Civil Court campus. She insulted her husband in the presence of a number of people and said that 'you have no capacity to feed me and that she will not live with her husband and let her do all the efforts'. This testimony has been discarded by the learned Trial Court on the ground that no date has been mentioned of the incident by this witness nor names of persons who were collected over the place has been disclosed nor it has been disclosed by the witness as to why he went to Court campus. All these factors should have been tested by the adversary party, in the course of cross-examination. A perusal of cross-examination of this witness shows that only factum of date has been cross-examined but nothing else has been cross-examined. This testimony has not been challenged on the deposition made by the witness to the effect that she has stated not to live with her husband and as she has no need of money and she is a Teacher and getting more salary than her husband. She has further stated that neither she will live with her husband nor she will divorce him and she will do whatever her parents would like. Nothing of this statement has been challenged by the wife in the cross-examination. The Learned Trial Court has rejected the testimony, on its own motion, which is not permissible under the law. In the similar fashion, the Learned Trial Court has rejected the testimony of the plaintiff appellant on flimsy grounds. The grounds mentioned by the learned Trial Court on Page-7 of its judgment under the discussion of Issue no. 1 are self-contradictory. The learned Trial court has mentioned that the plaintiff has deposed in his cross-examination that he could not meet his children since 2006, when the litigation started and the learned Trial Court has further mentioned that the plaintiff has deposed that he could not meet his children since 2004 without any deposition to this effect in his affidavit. The admitted case between the parties is that since 26.01.2004 to July 2004, the parties lived in Jawahar Vihar Colony. But the learned Trial Court has inserted his own case by discussing that the plaintiff has wrongly mentioned that he could not meet his children since 2004. There is illegality in this averment by the learned Trial Court. Again, the learned Trial Court has mentioned that the plaintiff has deposed that he got service in the year 2005 and before getting his service, the wife was living along with her parents and children, mostly in the city and very often he used to go to his village.

On the other hand, the defendant-respondent has failed to prove cruelty by the husband in the form of demanding rupees Two Lacs. The marriage was admittedly solemnized in the year 1999 and three children were born out of this wedlock. The matrimony continued smoothly and happily and the dispute arose only when the wife got the job. This important fact has been ignored by the Learned Trial Court, at all. Smt. Kanti, D.W. 1 has deposed in her cross-examination that she is living with her husband for 18 years and she has given unnatural statement that her husband left her children alone in Jawahar Vihar Colony. She has also given an unnatural statement that there was ill-will between her and husband since the time of marriage and the ill-will was caused by the feeling of her husband the he could not get dowry as per his requirement. She has further deposed that whenever her husband demanded rupees two lacs, it was at a lonely place. Her statement is full of contradictions but the learned Trial Court has misread the evidence and misinterpreted the law on the point. The evidence led by the parties show that the wife has dealt with her husband cruelly after getting her job.

In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, the Hon'ble Apex court has observed about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that when a spouse makes a complaint about 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.

In Sheldon v. Sheldon, (1966) 2 All ER 257, wherein Lord Denning stated, "the categories of cruelty are not closed". Thereafter, the Bench proceeded to state thus:- 

"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.

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 Ried observed in Gollins v. Gollins, (1963) 2 All ER 966:

'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."

In Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582 it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment, and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other.  

In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22 it has been ruled that 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 and environment in which they live. If from the conduct of the spouse, it is established and/or an inference can legitimately be 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 the same would amount to cruelty. While dealing with the concept of mental cruelty, enquiry must begin as to the nature of cruel treatment and the impact of such treatment in the mind of the spouse. It has to be seen whether the conduct is such that no reasonable person would tolerate it.

In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 it has been ruled that as to what constitutes mental cruelty for the purposes of Section 13(1)(ia) will not depend upon the numerical count of such incident or only on the continuous course of such conduct but one has to really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude necessary for maintaining a conducive matrimonial home.

In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 the Hon'ble Apex 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 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 belief, human values and their value system. 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 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.

In Suman Kapur v. Sudhir Kapur, AIR 2009 SC 589 after referring to various decisions in the field, the Hon'ble Apex Court took note of the fact that the wife had neglected to carry out the matrimonial obligations and further, during the pendency of the mediation proceeding, had sent a notice to the husband through her advocate alleging that he had another wife in USA whose identity was concealed. The said allegation was based on the fact that in his income-tax return, the husband mentioned the "Social Security Number" of his wife which did not belong to the wife, but to an American lady. The husband offered an explanation that it was merely a typographical error and nothing else. The High Court had observed that taking undue advantage of the error in the "Social Security Number", the wife had gone to the extent of making serious allegation that the husband had married an American woman whose "Social Security Number" was wrongly typed in the income-tax return of the husband. This fact also weighed with this Court and was treated that the entire conduct of the wife did tantamount to mental cruelty.

In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, the Hon'ble Apex Court has held as under:-

?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 his 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 amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is 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. Therefore, one has to see what are the probabilities in a 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, Courts are required to probe into the mental process and 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. (See Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121).

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 a 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 had 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.?

In Sujata Uday Patil v. Uday Madhukar Patil, (2006) 13 SCC 272, the Hon'ble Supreme Court has held as under:-

?The word "cruelty" and the kind or degree of "cruelty" necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kind of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty.?

In Ravi Kumar v. Julmidevi (2010) 4 SCC 476, the Hon'ble Apex Court has observed as under:-

?It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, at AIR p. 123, para 5 of the report: (SCC p. 108, 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 stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.?

In view of the authorities as mentioned above and in the light of the evidence on record, a case of mental cruelty is made out but the learned Trial Court has wrongly interpreted the evidence. In addition to the evidence on record the failure of mediation efforts by this Court through Mediation and Conciliation Centre and in the Chamber make it quite clear that the wife/respondent is not ready and willing to live with her husband and, as such, there has been irretrievable breakdown in the marriage. A larger Bench of the Hon'ble Supreme court in the case of Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, dealt with irretrievable breakdown of marriage by holding that foundation of sound marriage is tolerance, adjustment and respecting one another. In this case the Hon'ble Apex Court has also held as under:-

"Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute.

We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.

Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.

The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom."

On the totality of circumstances, the parties cannot be left to wait for justice and the aggrieved husband must get redressal of his grievances. In this case it is apparently clear that the wife is adamant not to live with her husband. Refusal to decree divorce would be a cruelty on the part of the Court to delay the relief for which the party is legally entitled. It was argued by learned counsel for the respondent that divorce may be granted. He has also frankly admitted before this Court that there is no sense in continuing the marriage as his client is adamant not to live with her husband but he argued that a permanent alimony may be fixed and relied upon the law laid down by the Hon'ble Apex Court in the case of Vishwanath v. Sau. Sarla Vishwanath Agrawal, 2012 (30) LCD 1395. I am unable to accept the condition of learned counsel for the respondent. The case before this Court is different from the case before the Hon'ble Apex Court as relied upon by him. In the case before this Court the divorce has been imposed upon the husband by the adamant wife just because she has got a better job and she is earning more than her husband. The husband has never refused to maintain his wife and children. Question of alimony does not arise at all. Had there been no children or no clerical job of the plaintiff/appellant, this is a fit case where the wife should be directed to grant permanent alimony to the husband. The word "alimony" is nothing but allowance for support made by one spouse to the other, pending or after their divorce or legal separation. In the case, in hand, the wife does not require any support from her husband as she is richer than her husband in all respects. She is enjoying better salary than her husband, she is living with her children and father who is also highly paid employee of the central government and she is the only daughter of her father. She is bound to inherit all the service benefits accrued to her father. Permanent alimony is to be granted, taking into consideration the social status, the conduct of the parties, the way of living of the spouse and such other ancillary aspects. Permanent alimony is a form of compensation i.e. to recompense, to counter balance and to make financial amends. It can not be treated to tax, fine, punishment or penalty to a male spouse, irrespective of the facts of a particular case. In the case, in hand, the wife is blindly and excessively firm, unyielding, stubborn and obstinate. Not only this, she is ruthless towards Indian social setup.

On the basis of discussions made above, the appeal deserves to be allowed and is hereby allowed. Judgment dated 30.04.2011 and decree dated 16.05.2011, passed by the Additional District Judge, Court No.1, Raebareli in Regular Suit No.781 of 2009 (Suresh Kumar v. Smt. Kanti) is set aside and the suit for divorce under Section 13 of Hindu Marriage Act is decreed. No order as to the costs.

Order Date :- 1.7.2013

Ram.