Andhra Pradesh High Court - Amravati
Gunapu Jayamma vs Gunapu Dharma Rao on 4 October, 2024
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
&
*THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+C.M.A.No.533 OF 2006
% 04.10.2024
# Gunapu Jayamma
......Appellant
And:
$Gunapu Dharmarao
....Respondent.
!Counsel for the appellant : Sri A. Ravi Shankar
^Counsel for the respondent : Nil
<Gist:
>Head Note:
? Cases referred:
1
2023 SCC OnLine SC 1127
2
(2009) 1 SCC 422
3
(1975)2 SCC 326
4
2023 SCC OnLine SC 544
5
(1975) 2 SC 326
6
(1940) P 187
7
2023 SCC OnLine SC 497
8
(2020) 18 SCC 247
2
HIGH COURT OF ANDHRA PRADESH
****
C.M.A.No.533 OF 2006
DATE OF JUDGMENT PRONOUNCED: 04.10.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the Yes/No
fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY,J
3
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
C.M.A.No.533 of 2006
JUDGMENT:
per the Hon‟ble Sri Justice Ravi Nath Tilhari:-
1. This appeal under Section 28 of Hindu Marriage Act, 1955
(for short, "the H.M.Act" has been filed by the wife challenging the
decree of divorce dated 08.03.2006, passed in M.O.P.No.25 of
2004 on the file of Court of Senior Civil Judge, Rajam, Srikakulam
(in short, the Trial Court) filed by the respondent-husband. M.O.P
was filed under Section 13(1) of the H.M.Act on the ground of
cruelty.
2. Heard Sri A. Ravi Shankar, learned counsel for the
appellant (wife).
3. None appeared for the respondent (husband) in appeal.
4. Henceforth, parties shall be referred as arrayed in M.O.P.
5. The case of the petitioner (husband) was that the marriage
was solemnized on 25.06.1994 as per the caste, custom and
Sastric riots. After marriage, the respondent joined the petitioner
for conjugal rights. They were living jointly. However, after six
months, the disputes arose. Out of the wedlock children were
born. However, the behaviour of the wife was not good and she
meted the petitioner with cruelty on one or the other ground to
cause intentional harassment. One incident dated 23.07.2004
the husband has pleaded, that intentionally the respondent
poured boiled cattle feed to the body of the petitioner and left the
house with children. He was given first aid and went to the police
station from where he was taken to the Government hospital and
he underwent treatment for 21 days. A case under Sections 325,
324 IPC was registered against the wife. Having fear of life in the
mind, the petition for divorce was filed on the ground of cruelty.
6. The respondent filed counter denying the material
allegations of cruelty. She denied the incident dated 23.07.2004
and pleaded that on that date, at about 8.00 p.m, the petitioner
came in drunken state and had beaten indiscriminately to the
respondent. In that process, he fell. The allegation of cruelty, the
respondent levied on the petitioner.
7. The learned trial court framed the following point for
consideration.
"Whether the petitioner is entitled for decree of divorce
on the ground of cruelty?"
8. The petitioner was examined as P.W.1 and got examined
P.W.2 N. Kannayya, P.W.3 D. Gopalam and P.W.4 G. Bodeyya
and marked Ex.P.1 office copy of legal notice, Ex.P.2 CC of
charge sheet in Cr.No.133 of 2004 of Rajam P.S, Ex.P.3 Eenadu
paper clipping dated 15.09.2004, Ex.P.4Eenadu paper clipping
dated 01.09.2004, Ex.P.5 photo with negative, Ex.P.6CC of order
in M.C.No.28 of 2004 dated 14.12.2005 of JMPC, Rajam.
9. The respondent examined R.W.1 Gunapu Jayamma,
R.W.2 S. Guruvulu, and R.W.3 G. Suribabu and marked Ex.R.1
copy of reply notice, Ex.R.2 xerox copy of F.I.R, Ex.R.3 wound
certificate, Ex.R.4 private complaint in C.C.No.163 of 2005,
Ex.R.5 copy of FIR in Cr.No.47 of 2005, Ex.R.6 CC of charge
sheet in Cr.No.47 of 2005.
10. The learned trial court recorded the finding that the cruelty
was established. It recorded that both the parties were living for
the past 13 years with bad taste. The wife had filed a false case
against the husband and his family members, which ended in
acquittal. Her case for maintenance was also dismissed. The
husband was held entitled for divorce.
11. Learned counsel for the appellant submitted that the finding
on cruelty is incorrect. No case for divorce was made out. He
submitted that though on 29.06.2006 while admitting the appeal
the interim suspension was granted on the divorce decree but to
his instructions both the parties are living separately. The children
have also grown. There is no possibility of any amicable
settlement.
12. We have considered the arguments of the learned counsel
for the appellant and perused the material on record.
13. The following points arise for our reconsideration and
determination:-
"i) Whether the cruelty was proved so as to grant the
decree of divorce?
ii) Whether the judgment of the learned trial court
deserves to be set aside?
14. The learned trial court recorded the finding on cruelty, on
consideration of the evidence on record. It found, with respect to
the incident dated 23.07.2004, that the charge sheet was filed in
C.C.No.133 of 2004 under Section 324 and 325 IPC in which wife
was arrested and by the time the trial court decided the above
petition, the said criminal case was pending. At present, what is
the judgment in the said criminal case, the learned counsel for the
appellant, is not in a position to state, for want of instructions.
Ex.P.5, is photos of the husband filed with negative which show
that, there are severe burn injuries on his body. The trial court
recorded that this was the major incident of cruelty, faced by the
petitioner, in addition to the other small and petty instances. The
husband underwent treatment for burn injuries as inpatient for
almost 21 days.
15. The incident dated 23.07.2004 of pouring the boiled cattle
feed on the petitioner is established from the material on record,
for which the criminal case was filed against the wife. The
appellant underwent treatment and remained inpatient for 21
days is also established. In civil cases, it is settled that the burden
of proof is discharged on preponderance of evidence. In Smt
Roopa Soni vs. Kamalnarayan Soni1, the Hon‟ble Apex Court
observed that on the question of burden of proof in a petition for
divorce it lies on the petitioner. However, the degree of
probability is not one beyond reasonable doubt, but of
preponderance. So, irrespective of the result in criminal case,
with respect to the incident dated 23.07.2004, we are of the view
that based on the material on record, the cruelty on the part of the
wife is established.
2023 SCC OnLine SC 1127
16. In Suman Kapur vs. Sudhir Kapur2, the Hon‟ble Apex
Court held that the expression „cruelty‟ includes both (i) physical
cruelty and (ii) mental cruelty. Referring to N.G. Dastane v. S.
Dastane3, the Hon‟ble Apex Court observed that the test of
cruelty is, "whether the conduct charged as cruelty is of such a
character as to cause in the mind of the petitioner a reasonable
apprehension that it will be harmful or injurious for him to live with
the respondent." It was further observed that 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 other person.
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 the nature of the
conduct and its effect on the complaining spouse.
17. Paras 33 to 35, 39 and 43 of Suman (supra) deserve
reproduction as under:-
"33. The test of cruelty has been laid down by this Court in the
leading case of N.G. Dastane (Dr.) v. S. Dastane [(1975) 2 SCC 326]
thus: (SCC p. 337, para 30)
(2009) 1 SCC 422
(1975)2 SCC 326
"30. ... The inquiry therefore has to be whether the conduct
charged as cruelty is of such a character as to cause in the mind of
the petitioner a reasonable apprehension that it will be harmful or
injurious for him to live with the respondent."
34. In Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa
Yasinkhan [(1981) 4 SCC 250 : 1981 SCC (Cri) 829] this Court stated
that the concept of legal cruelty changes according to the changes and
advancement of social concept and standards of living. It was further
stated that to establish legal cruelty, it is not necessary that physical
violence should be used. Continuous cessation of marital intercourse
or total indifference on the part of the husband towards marital
obligations would lead to legal cruelty.
35. In Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 105 : 1988
SCC (Cri) 60] this Court examined the concept of cruelty. It was
observed that the term "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 and behaviour in relation to or in respect of
matrimonial duties or obligations. It is a course of conduct of one
spouse which adversely affects the other spouse. The cruelty may be
mental or physical, intentional or unintentional. If it is physical, it is a
question of degree which is relevant. 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 other 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 the nature of the conduct and its effect on the complaining
spouse.
39. Mental cruelty has also been examined by this Court in Parveen
Mehta v. Inderjit Mehta [(2002) 5 SCC 706] thus: (SCC pp. 716-17,
para 21)
"21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken
as a behaviour by one spouse towards the other, which causes
reasonable apprehension in the mind of the latter that it is not safe
for him or her to continue the matrimonial relationship with the
other. Mental cruelty is a state of mind and feeling with one of the
spouses due to the behaviour or behavioural pattern by the other.
Unlike the case of physical cruelty, mental cruelty is difficult to
establish by direct evidence. 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 inference has to be drawn
from the attending facts and circumstances taken cumulatively. 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."
43. Recently, in Samar Ghosh v. Jaya Ghosh, (2007) 4
SCC 511, this Court held;
"101. No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate some
instances of human behavior which may be relevant in dealing
with the cases of `mental cruelty'. The instances indicated in the
succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make
possible for the parties to live with each other could come within
the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of
the parties, it becomes abundantly clear that situation is such
that the wronged party cannot reasonably be asked to put up
with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes
the married life for the other spouse absolutely intolerable.
(iv) Mental Cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by
the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behavior of one
spouse actually affecting physical and mental health of the
other spouse. The treatment complained of and the resultant
danger or apprehension must be very grave, substantial and
weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the
married life which happens in day to day life would not be
adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to
cruelty. The ill-conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent that
because of the acts and behavior of a spouse, the wronged
party finds it extremely difficult to live with the other party any
longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization
without medical reasons and without the consent or knowledge
of his wife and similarly if the wife undergoes vasectomy or
abortion without medical reason or without the consent or
knowledge of her husband, such an act of the spouse may lead
to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity
or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage
not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded 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, does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of
the parties. In such like situations, it may lead to mental
cruelty".
18. In Shilpa Sailesh V. Varun Sreenivasan4, also the
Hon‟ble Apex Court observed as under in para 32:
32. In N.G. Dastane v. S. Dastane5, as early as 1975, a
three judges' bench of this Court, after referring to the
provisions of the Indian Evidence Act, 1972, held that the fact
is said to be established if it is proved by a preponderance of
probabilities, that is, the court believes it to exist or considers
its existence so probable that a prudent man ought to, under
the circumstances of a particular case, act upon the
supposition that it exists. Often, the belief regarding the
existence of a fact is founded on balance of probabilities, that
is, the court is to weigh the various probabilities to discern the
preponderance in favour of the existence of a particular fact.
Holding that the proceedings under the Hindu Marriage Act
are civil proceedings, and referring to the provisions of Section
23 of the Hindu Marriage Act, it was held that the word
„satisfied‟ must connote satisfaction on „preponderance of
probabilities‟ and not „beyond a reasonable doubt‟. On the
meaning of „cruelty‟ as a ground for dissolution of marriage,
reference was made to the High Court's reliance on D.
Tolstoy's passage in The Law and Practice of Divorce and
Matrimonial Causes. Therein, „cruelty‟ has been defined as
wilful and unjustified conduct of such character as to cause
danger to life, limb or health, bodily or mentally, or as to give
2023 SCC OnLine SC 544
(1975) 2 SC 326
rise to a reasonable apprehension of such danger. However,
this Court felt that D. Tolstoy's passage, which
cites Horton v. Horton6, is not enough to show that the
spouses find life together impossible even if there results
injury to health. Accordingly, this Court elucidated that if the
danger to health arises merely from the fact that the spouses
find it impossible to live together and one of the parties is
indifferent towards the other, the charge of cruelty may
perhaps fail. However, harm or injury to health, reputation, the
working-career or the like, would be important considerations
in determining whether the conduct of the defending spouse
amounts to cruelty. The petitioner has to show that the
respondent has treated them with cruelty so as to cause
reasonable apprehension in their mind that it will be harmful or
injurious to live with the contesting spouse. In today's context,
two observations, while a court enquires into the charge of
cruelty, are of some significance. First, the court should not
philosophise on the modalities of married life. Secondly,
whether the charge is proved or not cannot be decided by
applying the principle of whether a reasonable man situated
similarly will behave in a similar manner. What may be cruel to
one may not matter to another, and what may not be cruel to
an individual under one set of circumstances may be extreme
cruelty under another set of circumstances. Cruelty is
subjective, that is, it is person, background, and circumstance
specific."
(1940) P 187
19. In Rakesh Raman vs. Kavita7, the Hon‟bl‟e Apex Court on
„cruelty‟ has held in paras 18 and 19 as under:
"18. Cruelty has not been defined under the Act. All
the same, the context where it has been used, which is
as a ground for dissolution of a marriage would show
that it has to 7 Section 13 (1) (ia) of the Hindu Marriage
Act, 1955 be seen as a „human conduct‟ and „behavior"
in a matrimonial relationship. While dealing in the case
of Samar Ghosh (supra) this Court opined that cruelty
can be physical as well as mental: "46...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
the nature of the conduct and its effect on the
complaining spouse.
19. Cruelty can be even unintentional:
...The absence of intention should not make
any difference 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
2023 SCC OnLine SC 497
element in cruelty. The relief to the party cannot be
denied on the ground that there has been no
deliberate or wilful ill-treatment."
20. Recently, in Roopa Soni (supra), the Hon‟ble Apex
Court held that the word „cruelty‟ under Section 13(1)(ia) of the
H.M. Act, 1955 has got no fixed meaning, and therefore, gives a
very wide discretion to the court to apply it liberally and
contextually. Paras 5 and 6 of Smt Roopa Soni (supra) are
reproduced 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.
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. 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) 1
SCC 105 :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.‟ "
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...." (emph asis
supplied)"
21. We are of the view that, the incident dated 23.07.2004, is
not only the physical cruelty but also amounts to mental cruelty
giving reasonable apprehension that it would be injurious for the
husband to live with the wife. The case to that effect was
specifically pleaded by the husband and the evidence of the
witnesses clearly reveal that the said incident gave reasonable
apprehension in the mind of the appellant that it was injurious and
harmful for the husband to live with the wife. The finding of the
learned trial court is based on the evidence on record. We do not
find it a case to take a different view. The cruelty is proved. The
finding on cruelty is affirmed.
22. Besides, the respondent wife also registered the case in
Crime No.147 of 2004 against the petitioner and his family
members under Sections 498-A, 323 and read with Section 34
IPC. The wife also filed another criminal case, (Ex.R.4) against
the petitioner and his family members. The filing of those criminal
cases by the wife against the husband and his family members
are not in dispute. It is also not in dispute that husband and his
family members were acquitted under Sections 498-A, 324 read
with Section 34 IPC. The filing of the criminal cases under
Section 498-A etc., against the husband and the family members
cause mental cruelty and furnishes a ground for divorce,
particularly when the husband and his family members are
acquitted in criminal case.
23. In Narasimha Sastry v. Suneela Rani8, the Hon‟ble Apex
Court in paras 12 to 14 held as under:-
"12. This Court has laid down that 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. This Court in Vijaykumar
Ramchandra Bhate v. Neela Vijaykumar Bhate [Vijaykumar Ramchandra
Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334] has laid down the
following in para 7 : (SCC p. 339)
"7. The question that requires to be answered first is as to whether the
averments, accusations and character assassination of the wife by the
(2020) 18 SCC 247
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."
13. In the present case, the prosecution is launched by the respondent
against the appellant under Section 498-A IPC making serious allegations
in which the appellant had to undergo trial which ultimately resulted in his
acquittal. In the prosecution under Section 498-A IPC not only acquittal
has been recorded but observations have been made that allegations of
serious nature are levelled against each other. The case set up by the
appellant seeking decree of divorce on the ground of cruelty has been
established. With regard to proceeding initiated by the respondent under
Section 498-A IPC, the High Court [Narsimha Sastry v. Suneela Rani,
2017 SCC OnLine Hyd 714] made the following observation in para 15 :
(Rani Narsimha Sastry case [Narsimha Sastry v. Suneela Rani, 2017 SCC
OnLine Hyd 714] , SCC OnLine Hyd)
"15. ... Merely because the respondent has sought for maintenance or
has filed a complaint against the petitioner for the offence punishable
under Section 498-A IPC, they cannot be said to be valid grounds for
holding that such a recourse adopted by the respondent amounts to
cruelty."
The above observation of the High Court cannot be approved. It is true
that it is open for anyone to file complaint or lodge prosecution for redressal of
his or her grievances and lodge a first information report for an offence also
and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty.
But, when a person undergoes a trial in which he is acquitted of the allegation
of offence under Section 498-A IPC, levelled by the wife against the husband,
it cannot be accepted that no cruelty has been meted out on the husband. As
per the pleadings before us, after parties having been married on 14-8-2005,
they lived together only 18 months and, thereafter, they are separately living
for more than a decade now.
14. In view of the forgoing discussion, we conclude that the appellant has
made a ground for grant of decree of dissolution of marriage on the ground as
mentioned in Section 13(1)(i-a) of the Hindu Marriage Act, 1955."
24. The parties are living separately for the last about 20 years.
It can be reasonably said that the marriage between the appellant
and the respondent is broken down. Inspite of stay in this appeal
on divorce decree, there is nothing on record to show that there
were efforts made for settlement.
25. In Rakesh (supra), the Hon‟ble Apex Court observed that
the long separation and absence of cohabitation and the
complete breakdown of all meaningful bonds and the betterness
between the two has to be read as „cruelty‟ under Section 13(1)
(ia) of the H.M. Act.
26. In Rakesh Raman (supra), the married couples were living
separately for last 25 years with multiple court cases between
them, the Hon‟ble Apex Court observed that the continuation of
such a marriage would only mean giving sanction to cruelty which
each is inflicting on the other. Para 21 of Rakesh Raman (supra)
reads as under:
"21. We have a married couple before us who have
barely stayed together as a couple for four years and
who have now been living separately for the last 25
years. There is no child out of the wedlock. The
matrimonial bond is completely broken and is beyond
repair. We have no doubt that this relationship must end
as its continuation is causing cruelty on both the sides.
The long separation and absence of cohabitation and the
complete breakdown of all meaningful bonds and the
existing bitterness between the two, has to be read as
cruelty under Section 13(1) (ia) of the 1955 Act. We
therefore hold that in a given case, such as the one at
hand, where the marital relationship has broken down
irretrievably, where there is a long separation and
absence of cohabitation (as in the present case for the
last 25 years), with multiple Court cases between the
parties; then continuation of such a „marriage‟ would only
mean giving sanction to cruelty which each is inflicting on
the other. We are also conscious of the fact that a
dissolution of this marriage would affect only the two
parties as there is no child out of the wedlock."
27. In Roopa Soni (supra), the parties were living separately
for a decade and half. It was observed that the marriage did not
survive any longer, and the relationship was terminated otherwise
except by a formal decree of divorce. The status quo continued,
awaiting an approval from the Court.
28. In the present case also when the divorce petition was filed,
parties were living separately. They were away from each other
for the last nine years, in the year 2006 itself. 18 more years
have passed and they are living separately. In our view, the
marriage does not survive, except for a formal decree of divorce,
which though was granted, but awaits approval of this court, in
view of stay in this appeal.
29. Thus, considered, we are of the view that the cruelty,
physical and mental both by the wife to the husband was
established. The finding of the learned trial court on „cruelty‟ is
affirmed. The marriage has also been irretrievable breakdown.
30. The appeal is devoid of merits and is dismissed. No order
as to costs.
As a sequel thereto, miscellaneous petitions, if any
pending, shall also stand closed.
____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY, J
Dated:04.10.2024
Note:
L.R copy to be marked
B/o.
Gk
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
Date: 04.10.2024.
Gk.
