Andhra Pradesh High Court - Amravati
Sri Hanchate Suresh Babu, Kadapa Dist. vs Smt. Hanchate Latha Bhai, Ananthapur ... on 25 October, 2024
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
&
*THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+C.M.A.No.640 OF 2010
% 25.10.2024
# Sri Hanchate Suresh Babu
......Appellant
And:
$ Smt Hanchate Latha Bhai
....Respondent.
!Counsel for the appellant : Smt Sodum Anvesha
^Counsel for the respondent : Smt Sandhya Deepthi Maddala
<Gist:
>Head Note:
? Cases referred:
1
2024 SCC OnLine Del 2442
2
2024 SCC OnLine All 158
32023 SCC OnLine SC 1127
4 (2009) 1 SCC 422
5
2023 SCC OnLine SC 497
2
HIGH COURT OF ANDHRA PRADESH
****
C.M.A.No.640 OF 2010
DATE OF JUDGMENT PRONOUNCED: 25.10.2024
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.640 OF 2010
JUDGMENT:
per the Hon‟ble Sri Justice Ravi Nath Tilhari:-
Heard Smt. Sodum Anvesha, learned counsel representing
Sri Murali Krishna for the appellant (husband) and Sri Sandhya
Deepthi Maddala, learned counsel appearing for the respondent.
2. This appeal under Section 28 of Hindu Marriage Act, 1955
(for short, "the H.M.Act") has been filed by the husband
challenging the dismissal of petition for divorce vide judgment
dated 16.06.2010, passed in O.P.No.28 of 2007 on the file of
Court of Senior Civil Judge, Proddatur, (in short, the Trial Court)
filed by the petitioner -husband. O.P was filed under Section
13(1) of the H.M.Act on the ground of desertion and mental
cruelty.
3. Henceforth, parties shall be referred as arrayed in O.P.
4. The case of the petitioner (husband) was that the marriage
with the respondent had taken place on 17.08.1994 at Sri
Ramana Maharshi Asramam, Tadipatri as per Hindu Rites and
customs. They lived happily for six months and thereafter the
dispute arose. The wife left the matrimonial home and went to
her parents house against the wish and will of the husband. Later
on panchayat was held but again they started living together. A
son and a daughter namely Pavan Sai and Aparna respectively
were born. After the birth of the daughter on 21.12.2000, the wife
again left the company of the husband with her gold ornaments.
On 01.01.2002. The husband was transferred to Proddatur from
Simhadripuram on 11.06.2002, the wife and her parents
kidnapped the petitioner. A police complaint was lodged in
Muddanur P.S against them. Again a panchayat was held in the
presence of the prominent persons where the matter was settled
and the wife agreed to divorce on payment of a sum of
Rs.50,000/- but the said amount was not received. The case of
the petitioner husband, was that there was desertion by the wife
without any cause and also causing mental cruelty.
5. The respondent wife filed counter. She denied the material
averments, which were pleaded for divorce. The panchayat
proceedings were admitted but any settlement in those
proceedings was denied. The wife also sent a legal notice dated
18.03.2006 to the husband that she never agreed for mutual
divorce. The averments of desertion and mental cruelty were
also denied.
6. The learned trial court framed the following points for
consideration:
"1. Whether the petitioner could establish the alleged cruelty
caused by the respondent in this case?
2. Whether the petitioner is entitled to the grant of divorce as
prayed for?
3. To what relief?"
7. The petitioner examined himself as P.W.1 and one S.
Sivaganga Bhai as P.W.2. Exs.A.1 and A.2 were marked. The
wife examined herself as R.W.1 and one P. Krishna Murthy as
R.W.2. No documentary evidence were marked on her behalf.
8. The learned trial court arrived at the finding that the
petitioner failed to establish the cruelty against the wife. It
observed that the wife was justified in desertion and that the
desertion alone would never come under the definition of cruelty
and dismissed the petition for divorce by judgment dated
16.06.2010.
9. The present appeal was referred to the Lok Adalat by order
dated 17.03.2017. But the matter was not settled on account of
the absence of the parties. Thereafter on 09.07.2024 on the joint
request of the learned counsel for the parties, the matter was
adjourned to next date to enable them to obtain instructions from
the respective parties with respect to the possibility of resolution
with the process of mediation at Mediation Centre. On
23.07.2024, learned counsel for the appellant submitted that
there was no chance for mediation. The parties were not willing
for mediation after the process before the Lok Adalat did not
succeed. Matter was heard finally and judgment was reserved.
10. Learned counsel for the appellant submitted that the wife
deserted without any reasonable cause. The parties are living
separately since 2000. The son is with the petitioner and the
daughter is living with the respondent. There are no chances of
re-conciliation, reunion or any settlement. He submitted that long
separation, even if there may be no desertion amounts to cruelty.
The learned court therefore was not right in not granting the
decree of divorce.
11. Learned counsel for the appellant placed reliance in Dr.
Vikas Gupta vs. Dr. Rajni Gupta1 and Charu Chug vs.
Madhukar Chugh2.
12. Learned counsel for the respondent submitted that the
cruelty was not proved. The finding of the learned court that
there was no cruelty suffered from no infirmity. Desertion was
2024 SCC OnLine Del 2442
2024 SCC OnLine All 158
also not proved. The wife had a reasonable cause for living
separately from the petitioner for the reason as recorded in the
order that the petitioner used to suspect the wife. She also
submitted that irretrievable break down is no ground for divorce.
13. We have considered the aforesaid submissions and
perused the material on record.
14. The following points arise for our consideration and
determination:-
i) Whether the desertion and 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?
15. Before proceeding further, we observe that in civil
cases, it is settled in law that, the burden of proof is
discharged on preponderance of probabilities. In Smt Roopa
Soni vs. Kamalnarayan Soni3, the Hon‟ble Apex Court
observed and held on the question of burden of proof that, in a
petition for divorce, it lies on the petitioner. However, the
degree of probability is not one beyond reasonable doubt, but
is of preponderance of probabilities.
2023 SCC OnLine SC 1127
17. In Suman Kapur vs. Sudhir Kapur4, the Hon‟ble Apex
Court held that the expression „cruelty‟ includes both (i) physical
cruelty and (ii) mental cruelty. It may be intentional and
unintentional. Paras 34,35, 39 and 43 of Suman Kapur (supra)
deserve reproduction as under:-
"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
(2009) 1 SCC 422
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 Rakesh Raman vs. Kavita5, 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
2023 SCC OnLine SC 497
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
element in cruelty. The relief to the party cannot be
denied on the ground that there has been no
deliberate or wilful ill-treatment."
19. 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 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)"
20. The parties are living separately for the last about 24 years.
It can be reasonably said that the marriage between the appellant
and the respondent is broken down. As mentioned above, the
efforts of conciliation through Lok Adalat failed. The mediation
could also not be possible because of the parties unwillingness to
go for mediation after such a long time of their living separately.
During the period of such separate living also, nothing has been
brought on record to show that, any efforts were made by the
parties for any kind of reunion, negotiation or settlement. The
children have grown up. Son is living with the petitioner and the
daughter is living with the respondent.
21. In Rakesh Raman (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
bitterness between the two has to be read as „cruelty‟ under
Section 13(1) (ia) of the H.M. Act.
22. 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."
23. 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.
24. In Dr. Vikas Gupta (supra), the Delhi High Court referred
to the case of the Hon‟ble Apex Court in the case of Samar
Ghosh vs. Jaya Ghosh ((2007) 4 SCC 511) and held that a
prolonged period of continuous separation could lead to the
irreparable breakdown of the matrimonial bond, constituting
mental cruelty and cessation or deprivation of cohabitation and
conjugal relationships, is an act of extreme cruelty.
25. In Charu Chug (supra), where the parties were living
separately for last 13 years, the Allahabad High Court observed
that itself amounted to cruelty under Section 13(1)(ia) of the H.M.
Act. The Allahabad High Court referred to the judgment of the
Hon‟ble Apex Court in the case of Rakesh Raman (supra).
26. In the present case also when the divorce petition was filed,
parties were living separately. They were away from each other
for the last seven years, in the year 2007 itself. 17 more years
have passed and they are living separately. In our view, the
marriage does not survive, except for a formal decree of divorce.
27. The cause as stated to justify separate living of the wife
from the husband, as in para 9 of the order of the learned trial
court, in our view cannot be termed as a reasonable cause for
separate living for such a long period. Initially, the respondent left
matrimonial home in the year 2000. There was some settlement
through Panchayat. The parties again started living. Children
were born but again the wife left the company on 21.12.2002 and
since then they are away from each other. The learned trial court
has stated the reason that the petitioner used to suspect the
character of the wife and observed that, that would be the justified
reason for the wife living separately and consequently the
desertion was not made out.
28. We have seen the evidence of R.W.1. In the chief
examination though she stated that the petitioner was suspecting
the character, but there is no corroboration of the said evidence
of the wife by any other witness. In fact, no other witness was
produced by her. The petitioner is the cousin of the mother of the
respondent. In the absence of any corroboration, we are of the
view that the learned trial court was not justified in holding that
the petitioner used to suspect the character of the wife and
consequently she was justified in her desertion.
29. In view of the aforesaid consideration, we are of the view
that the wife deserted the petitioner husband. We also hold that
the long separation between the husband and the wife amounted
to cruelty as the same has to be read as „cruelty‟ in the Section
13(1)(ia) of the H.M Act in view of the judgment of the Hon‟ble
Apex Court in Rakesh Raman (supra).
30. On Point No.1, we hold that the grounds of desertion and
cruelty are established to grant divorce. On Point No.2, we hold
that the judgment of the learned trial court deserves to be set
aside.
31. Accordingly, the appeal is allowed setting aside the order
dated 18.06.2007 passed in O.P.No.47 of 2005 on the file of
Senior Civil Judge, Amalapuram. The case for grant of divorce is
made out. The O.P.No.47 of 2005, is decreed granting the decree
of divorce and dissolving the marriage of the appellant and the
respondent.
32. 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:25.10.2024
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: 25.10.2024.
Gk.
