Surekha W/O Madhukar Damedhar @ ... vs Madhukar S/O Zingraji Damedhar
2021 Latest Caselaw 1077 Bom

                                                  1                    jg.fca 5.2016.odt


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH : NAGPUR.

       FAMILY COURT APPEAL (FCA) NO. 5 OF 2016


Surekha W/o Madhukar Damedhar
@ Surekha D/o Bhimraoji Bhute,
Aged about 49 years, Occupation :
Household, R/o. At Village Jarud,
Tah. Warud, Distt. Amravati.                                      ... Appellant
                                                                   (ORIGINAL RESPONDENT)
                                                                    On R.A.



       // Versus //

Madhukar S/o Zingraji Damedhar,
Aged about 59 years,
Occupation : Service,
R/o. Near House of Mohan Shendre,
Near Big Well (Kuwa),
Plot No.30, Tawarwadi Pardi Naka,
Bhandara Road, Nagpur                                             ... Respondent
                                                                  (ORIGINAL PETITIONER)
                                                                   On R.A.

------------------------------------------------------------------------------------
Shri S. Bhalerao h/f Shri. N. B. Kalwaghe, Advocate for the
appellant
Shri R. N. Sen, Advocate for the respondent-Sole
-------------------------------------------------------------------------------------------


                CORAM : A. S. CHANDURKAR AND
                        N. B. SURYAWANSHI, JJ.


                DATE          : 18/01/2021.


JUDGMENT (Per : N. B. SURYAWANSHI, J.)

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By this appeal fled under Section 19 of the

Family Courts Act, 1984, appellant wife takes exception to

the impugned judgment and decree passed by the Family

Court No.2, Nagpur in Petition No.A/344/2007, thereby

decreeing petition fled by respondent husband for

divorce on the ground of cruelty.

2. The facts in brief leading to this appeal are as follows :

i. Husband fled petition under Section 13(1) (i-a)

of the Hindu Marriage Act, 1955 claiming divorce from the

wife contending that their marriage was solemnized on

24.05.1984. Out of the wedlock, daughter Parinita aged

at 23 years, Ashwini aged at 22 years and son Abhijeet

aged at 14 years were born. The married life of the wife

and the husband was happy till November-2006. In the

year 2006, the wife's mother came to Nagpur in search of

job for herself and she got the job of a maid in the house

of Police Sub Inspector Shri. Rajendra R. Pawar and she

started residing there in the servant quarters at Police

Line Takali, Nagpur. Intermittently the wife's mother used

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to take the wife along with her to stay there at night. The

husband did not take it seriously, however, it became the

habit of the wife to stay away from the house by stating

that she was going to Police Line Takali to stay with her

mother.

ii. The husband was working at a Petrol Pump. He

used to come back at home at 9.00 p.m. from duty, the

wife never used to remain present at home and on asking

about her, the children used to tell that she had gone to

her mother at Police Line Takali. Many a times, the

husband tried to convince the wife not to stay out of

house as it was causing a bad impression on the children,

but the wife did not listen to him. The wife's father was

admitted in Government Medical College Hospital at

Nagpur on 07.02.2007 as he was sufering from cancer.

On 13.02.2007, when the husband went to see his father-

in-law in the hospital, the wife was not there. His Mother-

in-law told him that the wife had left for home in the

evening of 12.02.2007. The wife returned home on

13.02.2007 at 9.00 a.m. carrying a thermos. When she

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was asked as to where she was ? She gave evasive

replies in one breath, she was telling that she was in

temple and other she was telling that for bringing tea for

her father, she had gone to some lady's house. When

questioned about the thermos, she told that it belonged

to P.S.I. Shri. R. Pawar. When she was asked as to where

she was on the night of 12.02.2007, she did not give any

reply. In the month of March 2007, the health of the

wife's father deteriorated and he was admitted in Meyo

Hospital, Nagpur on 31.03.2007. The wife daily used to

go there and halt there at night. On 05.04.2007, when

the husband went to see his father-in-law, the wife was

not there. When he asked his mother-in-law as to where

his wife was, he was told that she had gone to attend

nature's call. The husband waited in the hospital for 45

minutes, but the wife did not come back. Thereafter, his

mother-in-law told him that the wife had gone to the

home to bring certain documents. On returning home,

the husband did not fnd the wife at home. She returned

home after 2 to 3 hours. When asked as to where she

was, she did not reply. When the father of the wife was

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discharged on 17.04.2007, the wife accompanied him to

village Jarud and did not return for six days.

iii. On 19.04.2007, when the husband called up

his mother-in-law and requested her to send his wife back,

he was told that on 19.04.2007 by 8.30 a.m. bus, the wife

was sent back to Nagpur. However, the wife returned

back home at about 11.00 a.m. on 22.04.2007. When she

was asked as to where she was between 19.04.2007 to

21.04.2007, she replied that she had gone to the temple

at Paradsinga. When the husband gave her understanding

not to behave in such manner, the wife lodged a false

police complaint against him at Ajni Police Station, Nagpur

on 11.05.2007. The Police registered ofence punishable

under Sections 107 and 116 of the Indian Penal Code

against the husband and called the wife and the husband

along with children and recorded their statements. The

mother of the wife had also accompanied the wife to the

Police Station. The wife asked permission from the Police

Authorities to accompany her mother on that day and she

left with her mother. The husband was threatened by the

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wife and her mother that they will see as to how he stays

in Nagpur. The husband gave a complaint in that behalf

to the Ajani Police Station, which was registered for

ofence punishable under Section 506 of the Indian Penal

Code. The wife and the husband are therefore staying

separately from 16.05.2007. The husband further claimed

that the wife has studied upto B.Com Part-I and while

staying with the husband, she was running a Kirana Shop

in the name of Radhika Kirana and General Stores. She

was an income tax payee. She was in gainful

employment with M/s. Adecco FlexiOne Work Force

Solutions Ltd. Bangalore, which is a group of Mahindra

and Mahindra Financial Services and she was posted at

Nagpur and was getting a monthly salary of Rs.4,084/-,

whereas the husband was working at a Petrol Pump and

was getting a salary of Rs.2,000/- per month. The

husband, therefore, claimed in the petition that the

behavior of the wife, her lodging of false complaints and

passing sarcastic and insulting remarks against the

husband and threatening him with dire consequences

amounts to cruelty, hence he prayed for decree of divorce

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on the ground of cruelty.

3. The wife by fling written statement denied all

the allegations made by the husband. She pleaded that

the husband used to harass her on account of dowry. She

was discharging her marital duties properly and her

relations with her mother-in-law and other family

members were most cordial. The husband soon after

marriage, started abusing the wife for not bringing

sufficient dowry. The wife could not fulfll the demands

and unwarranted aspirations of the husband. The family

of the wife tried to explain to the husband's family that

they being from middle class were not in a position to

fulfll the demands of the husband. It was further

contended that the wife got knowledge that the husband

was having illegal and immoral, physical and sexual

relations with his maid servant. The wife tried to dissuade

the husband from indulging in such acts. It is further

claimed that one woman unknown to the wife came to the

house of the husband for some work and stayed for the

whole day and night. On that night, the wife saw the

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husband and the said lady were involved in sexual acts.

Even after the birth of their children, the husband used to

beat the wife. When the children used to oppose the

husband, he used to get infuriated and angry and used to

behave rudely with children. It is further alleged that the

husband also tried to forcefully administer poison to the

wife. He also tried to set her on a fre by pouring

kerosene on her person, but the wife somehow managed

to save herself. In the month of May 2007, the father of

the wife was admitted in Meyo Hospital, Nagpur for

cancer treatment. After his discharge, the wife

accompanied him to their village Jarud. She stayed there

for 4 to 5 days and thereafter returned to matrimonial

house with her mother. The husband assaulted the wife

and locked her in a room. He was suspecting that the

wife had paid money for the treatment of her father at

Meyo Hospital. Since the husband was bent upon killing

the wife, she was forced to go to her parent's house

leaving the children behind at Nagpur. She claimed that

without her knowledge, the husband sold the house at

Shrinagar and also her grocery shop along with material

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amounting of Rs.3,50,000/-. When questioned, the

husband threw the wife out of the house and she was

again forced to go to her parent's house at Jarud. She

further claimed that she is entitled to be compensated for

an amount of Rs.3,50,000/- towards cost of materials in

the Grocery Shop. She also claimed Rs.10,000/- per

month by way of compensation for loss of earning from

the grocery shop. She claimed that she was jobless and

had no source of income. The husband was earning

Rs.10,000/- per month from his job. She therefore prayed

that the petition for divorce fled by the husband be

dismissed.

4. The learned Family Court after recording

evidence, allowed the divorce petition fled by the

husband. Hence, the present appeal by the wife

challenging the said decision.

5. The learned advocate for the appellant wife

vehemently contended that the respondent husband has

failed to prove the cruelty on the part of the wife. There

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was no evidence on record to justify the grant of decree of

divorce in favour of the husband. He submitted that for

three days between 19.04.2007 to 21.04.2007, though

the wife was untraceable, the husband has failed to lodge

any missing complaint. He further submitted that the

daughters have deposed as per their father's say and

their evidence should not have been believed by the

Family Court. He stated that the conclusions drawn by

the Family Court are erroneous and the fndings recorded

are perverse. The impugned judgment according to him

is unsustainable and is liable to be quashed and set aside.

In support of his contentions, he placed reliance in Samar

Ghosh ..Vrs.. Jaya Ghosh, 2007(4) SCC 511, Savitri

Pandey ...Vrs... Prem Chandra Pandey, AIR 2002 SC 591

and on a decision of Calcutta High Court in Anuradha

Ghosh Moulick ...Vrs... Subir Krishna Ghosh Moulick,

2008 SCC OnLine Cal 125.

6. Per contra, the learned advocate for the

respondent husband supported the decision of the Family

Court contending that the evidence on record justifes the

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decree of divorce granted by the Family Court. He

therefore prayed for dismissal of appeal being merit less.

7. Heard learned advocate for the parties. With

their assistance, we have gone through the record. After

hearing rival submissions, following point arises for

determination :

Whether the Family Court was justifed in

granting decree of divorce in favour of the

respondent husband ?

8. For appreciating the rival contentions, it is

necessary to consider the evidence on record.

9. The respondent husband fled his affidavit of

evidence in verbatim reproducing the pleadings of his

petition. In cross-examination he stated that from 6.00

a.m. to 10.00 p.m. he used to remain at the petrol pump.

He deposed that he did not fle any complaint in the Police

Station that his wife used to remain absent in the night

from his house, as he did not want to damage the

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reputation of his family. He admitted that the wife did not

go for domestic work at the house of P.S.I., Shri. R. Pawar.

He further stated that the wife used to tell the children

that she was going to meet her mother. He inferred that

she used to visit the house of P.S.I., Shri. R. Pawar in the

night time because mother-in-law was living at the house

of P.S.I., Shri. R. Pawar. He admitted that when the father

of the wife was admitted in hospital in last week of

February 2007, the wife and her mother used to live in the

hospital. The wife's father was in the hospital for 10 to 15

days.

10. Daughter Pranita aged about 26 years was

examined as PW-2 by the husband. She supported the

contentions of the husband that in the year 2006, her

maternal grandmother came to their house and requested

her father to search job for her. She got a job as a maid in

the house of P.S.I., Shri. R. Pawar in Police Line Takali,

Nagpur. Her grandmother used to live in the quarter

allotted to P.S.I. Shri. R. Pawar. Sometimes, her mother

used to go to Police Line Takali saying that she was going

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to meet her mother. Sometimes, her mother used to stay

in the quarter of Shri. R. Pawar. Her mother used to go in

the day time and stay there frequently i.e. 3 to 4 times a

month. When her grandfather was admitted in the

hospital, her father went to Government Medical College

to see him on 13.02.2007. On his return from the

hospital, her father asked her as to whether her mother

had come home in the evening of 12.02.2007 ? She

replied in the negative. On asking, father told that her

mother was not in the hospital from the evening of

12.02.2007. Her mother returned home on 13.02.2007 at

9.00 a.m. carrying a thermos. When asked, she told that

thermos belonged to P.S.I., Shri. R. Pawar. There was a

heated discussion between her parents. Her father gave

understanding to the mother that living away from the

house was not proper. Due to that her mother quarreled

with her father. She further deposed that after discharge

of her grandfather, her mother went to Jarud along with

her parents and came back on 22.04.2007. When her

father asked her mother as to where she was between

19.04.2007 to 21.04.2007, she replied that she was at

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Paradsinga temple. Her father again gave understanding

to her that it was not proper to stay away from home

leaving young daughters at home. That time again her

mother quarreled with her father and lodged a false

complaint against him on 11.05.2007. On 16.05.2007,

her mother left them and went to her parent's house. She

also stated that the Kirana Shop was started by her father

by obtaining a loan. The same was being run by her

mother, however, after 2006, the Kirana Shop was not

running properly and lastly there were no goods in the

Shop and hence the Shop was required to be closed by

her mother. After closing the Shop, her mother got a job

in Mahindra and Mahindra Financial Services and she was

getting a salary of Rs.4,000/- per month. Her mother told

that she got that job with the help of Shri. R. Pawar. There

was a hot exchange between her father and P.S.I., Shri. R.

Pawar. Shri. R. Pawar threatened her father with dire

consequences. Apprehending danger to his life, her

father sold the house at Shrinagar and started residing in

a rented house. She stated that she got married on

25.01.2007 and she was staying with her husband.

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Before marriage, when she was staying with her father,

her mother used to visit their house and used to abuse

her father in flthy language and used to threaten him.

She also stated that she herself, her sister and brother

were not happy with the conduct of their mother.

11. In cross-examination she told that in the year

2006, her age was 20 years. The talks between her

mother and grandmother regarding their search for a job

for the grandmother occurred in her presence. She stated

that she knew P.S.I., Shri. R. Pawar. She was knowing that

her grand parents were acquainted with said Pawar. She

also admitted that her mother and brother lived at the

house of P.S.I. Shri. R. Pawar for one night. She admitted

that the dates mentioned in her affidavit of evidence have

been written at the say of her father. She also admitted

that she did not know where her mother had gone after

the discharge of her grandfather. She did not know the

date when her mother came back from Jarud. She stated

that she did not remember what happened on

16.05.2007. She was not able to state what happened in

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the evening of 12.02.2007 and the next morning at 9.00

a.m., she denied the suggestion that anything had

happened in her presence as narrated by her in her

affidavit.

12. The husband examined second daughter

Ashwini aged about 24 years as PW-3. She deposed on

similar lines like her sister PW-2 (Pranita). In cross-

examination she stated that her grandmother told her

that she got a job in the house of P.S.I., Shri. R. Pawar.

Her younger brother might have lived on 1 or 2 occasions

at the servant quarters of her grandmother. She deposed

about the quarrel between her parents on 13.02.2007.

She admitted that her mother did not go to Jarud with her

grandfather after he was discharged from the hospital.

She further deposed that on 19.04.2007, her mother left

for Nagpur from Jarud, but she did not come home. She

admitted that she was not able to state all the events

date wise. The heated exchange after her mother

returned from Jarud did not take place in her presence.

She admitted that she used to meet her mother and on

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13.01.2012, she was present for the birthday celebration

of her mother. She denied the suggestion that on the say

of her father, she was deposing false before the Court.

13. The wife fled her affidavit in lieu of

Examination-in-chief, in verbatim reproducing the

contentions in the written statement. In cross-

examination she admitted that till the fling of the

petition, their married life was happy and they were

together for a period of 23 years from 1984 to 2007. She

could not give the exact dates when her father was

admitted in Meyo Hospital and Medical Government

College for cancer treatment. She stated that she had

four sisters and one brother. Her brother did not

accompany the father to the hospital. She used to go to

the hospital and stay with her father. She also admitted

that she used to leave her two young daughters at home

and used to stay with her father in the hospital. She

stated that during the period, her father was admitted in

GMC for about 20 days and for 8 to 10 days in Meyo

Hospital, Nagpur. She stayed for only one night with her

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father. She stated that, she could not tell whether she

stayed in the hospital in the night of 04.04.2008.

However, she admitted that on 5.04.2008, the husband

had been to the hospital to meet her father. She denied

that she was not present in the hospital. She admitted

that the husband asked her mother about her

whereabouts. She denied that her mother told the

husband that she had gone to the toilet. As she was not

there, she did not know whether Madhukar stayed there

for 45 minutes. She admitted that she stayed in the

hospital in the night of 04.04.2008. She also admitted

that when the husband came back home from hospital,

she was not at home and she reached home after him.

She stated that she left the hospital at 5.30 a.m. and

reached home at 8.30 a.m. The distance between hospital

and home was 7 kms. She admitted that after discharge

of her father on February-2007, they directly went to

Jarud. She also admitted that her father was discharged

on 17.04.2007 and she returned from Jarud on

22.04.2007. She also admitted that on 19.04.2007, her

husband called her mother and enquired about her

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whereabouts. She also admitted that her mother told the

husband that she had departed from Jarud for Nagpur by

bus at 8.30 a.m. She also admitted that on 22.04.2007,

the husband asked her as to where she was from

19.04.2007 till 22.04.2007. She denied that the husband

tried to convince her not to live away from home as the

same would afect the young daughters. She admitted

that her mother was working in the house of one P.S.I.

Shri. Pawar Saheb whose name is Shri. Rajendra Pawar

and he was P.I. at Buldi Police Station. She also admitted

that on 1 or 2 occasions , she told her daughters that she

was going to Police Line Takali to meet her mother at the

house of Shri. Pawar. She could not give the dates when

she had gone to the house of Shri. Pawar. She also

admitted that Shri. R. Pawar used to visit their house. She

further stated that he was not on visiting terms. She

stated that she did not know that Shri. R. Pawar died of a

heart attack and at the time of his death, she was present

with her mother at Police Line Takali. She further admitted

that with the assistance of Shri. Pawar, she got a job at

M/s. Adecco FlexiOne Work Force Solutions Ltd. Bangalore.

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She also admitted that after 2007, relations between

Shri. R. Pawar and her husband became strained. She

stated that she did not know that their relations became

so strained because of his suspicion of illicit relations

between herself and Shri. R. Pawar. She denied the other

suggestions that she had fled false complaints against

the husband.

14. The wife's mother was examined as DW-2, who

fled her affidavit of evidence in similar terms as that of

the wife. In cross-examination she admitted that till the

year 2006, the wife and the husband lived a happy

married life. In the year 2007, she started working as a

maid servant at the house of Shri. R. Pawar. She denied

that she used to reside at the house of Shri. Pawar and

she did not know that Shri. Pawar died due to heart

attack. She denied that her daughter used to come there

when she was working in the house of Shri. Pawar. She

denied that there were illicit relations between her

daughter and Shri. R. Pawar. She admitted that the wife

and the husband have been separated in the year 2007

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and since the separation, the children are in custody of

the husband. She admitted that after the discharge of her

husband from hospital on 17.04.2007 she, her husband

and the wife had gone to village Jarud. She admitted that

on 19.04.2007, the husband had telephoned her and

stated that the wife had not reached home. She denied

that the wife departed for Nagpur by the morning bus on

19.04.2007. She however admitted that from 19.04.2007

till 24.04.2007, the wife was neither at Jarud nor at her

matrimonial home. She stated that the wife had gone to

the house of her sister at Khairgaon. She stated that her

husband had gone with the wife up to the Bus stand to

leave her. She denied that between 19.04.2007 to

24.02.2007, the wife was living at Paradsinga in Sati Maa

Ashram. She further stated that when she was working as

a maid servant at the house of Shri. Pawar, she was

staying with the wife and the husband. She could not

give the distance between the house of the husband and

the house of Shri. Pawar, but she stated that she used to

incur Rs.40/- per day for traveling from the house of the

husband to the house of Shri. Pawar. She also stated that

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Shri. Pawar used to give her Rs.500/- per month.

15. After going through the evidence on record, it is

clear that after marriage on 24.05.1984, the appellant and

the respondent were leading happy married life till 2007.

The marital discord started only after the mother of the

appellant joined service at Shri. Pawar's house and when

the appellant started frequently visiting the house of Shri.

Pawar on the pretext of meeting her mother. Mother of the

appellant used to stay in the quarter of Shri. Pawar at Police

Line Takali. At least 3 to 4 times a month, the appellant

used to go there and stay overnight. Inspite of

understanding given by the the respondent that it was

improper to stay away from home during nights, since they

had grown up son and two young daughters at home, she

did not listen to him. The respondent has proved the

behavior of appellant of frequently staying away from home

on false pretext, by leading his own evidence. His daughters

who were grown up and who had throughout witnessed the

behavior of their mother have supported his case by

entering in the witness box. They have deposed that the

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appellant at many times was staying at Police Line Takali at

the house of Shri. Pawar on the pretext of meeting her

mother. Both the daughters have categorically deposed

that their grandmother was working as a maid servant at

the house of Shri. Pawar. Their mother (appellant)

sometimes alone or sometimes with their brother used to go

to Shri. Pawar's house for night halts and there used to be

quarrels between the appellant and the respondent on that

count.

16. The appellant has given vital admissions in her

cross-examination, which strengthen the case of the

respondent. She admitted that after the marriage on

24.05.1984 till the fling of the petition for divorce, the 23

years married life of the appellant and the respondent was

happy. She deposed that when her father was admitted in

Meyo Hospital and the Government Medical College,

Nagpur, she used to go to the hospital and stay with her

father leaving two young daughters at home. However,

when the respondent came to visit her father on

05.04.2008, she was not present in the hospital. She stated

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that she left hospital at 5.30 a.m. and reached home at 8.30

a.m., when the hospital was at a distance of only 7 kms

from their house. She admitted that in 2007, her father was

admitted in the Medical College Hospital for cancer

treatment and he was discharged on 17.04.2007. On that

day along with her parents, she directly went to Jarud and

returned to Nagpur on 22.04.2007. She admitted that on

19.04.2007, the respondent had telephoned her mother

asking about her whereabouts. She has also admitted that

her mother replied that on the same day, the appellant

departed by bus from Jarud for Nagpur at 8.30 a.m. She also

admitted that on her return on 22.04.2007, the respondent

asked her as to where she was from 19.04.2007 till then.

She also admitted that in the year 2007, her mother was

working at the house of Shri. R. Pawar, P.I. of Buldi Police

Station. She further admitted that on 1 or 2 occasions, she

told her daughter that she would be going to Police Line

Takali to meet her mother at the house of Shri. Pawar. She

also admitted that with the assistance of Shri. Pawar, she

got a job in Adecco Company and that after 2007, the

relations between Shri. R. Pawar and the respondent

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became strained. She further stated that she did not know

that the relations between Shri. Rajendra Pawar and

Madhukar (husband) became so strained because of her

illicit relations with Shri. Pawar.

17. Although the mother of the appellant tried to

support the appellant, the falsity in her evidence was

exposed in the cross-examination. She gave a diferent

explanation that the appellant was at her sister's place

between 19.04.2007 till 22.04.2007. According to the

appellant, she was at Paradsinga temple, however, this was

specifcally denied by her mother. She tried to contend that

while she was working as a maid servant in the house of

Shri. Pawar, she was staying with the appellant and the

respondent. However, the same is not believable in view of

admission given by the appellant and in view of the

evidence of the respondent and his two daughters that she

was staying at P. I. Pawar's quarters at Police Line Takali.

Thus the evidence of the mother is not of any help to the

case of the appellant.

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18. The evidence on record has established that the

behavior of the appellant of frequently staying away from

home during night times, leaving behind two grown up

daughters and one son, inspite of the respondent repeatedly

asking her not to do so, left a feeling of deep anguish,

disappointment and frustration in the respondent for a long

time. The admissions given by the appellant in her cross-

examination lend support to the case of the respondent.

The said behavior of the appellant has caused constant

mental stress to the respondent.

19. The Hon'ble Supreme Court in Malathi Ravi, M.D.

..Vrs.. B. V. Ravi, M. D., 2014 (7) SCC 640 held : "mental

cruelty and its efect cannot be stated with arithmetical

exactitude. It varies from individual to individual, from

society to society and also depends on the status of the

persons. What would be mental cruelty in the life of two

individuals belonging to a particular strata of the society

may not amount to mental cruelty in respect of another

couple belonging to a diferent strata of society. An

agonised feeling or for that matter a sense of

27 jg.fca 5.2016.odt

disappointment can take place by certain acts causing a

grievous dent at the mental level. The inference has to be

drawn from the attending circumstances. With regard to the

facts and the circumstances of the present case, it must be

held that the decree of divorce granted by the High Court

deserves to be affirmed singularly on the ground of mental

cruelty". Applying this ratio to the facts of the present case

in our view, the respondent has established on record, the

mental cruelty meted out to him by the appellant through

her behavior and conduct. Taking into consideration the

circumstances brought on record in the evidence, we are of

the considered view that the decree of divorce granted by

the Family Court deserves to be confrmed.

20. The learned advocate for the appellant relied in

Samar Ghosh (supra), wherein the Hon'ble Supreme Court

has explained the nature and scope of mental cruelty as a

ground for divorce and has enumerated in Para 101 some

instances of human behavior which may be relevant in the

case of mental cruelty. The instances from (i) to (xiv) are

stated to be illustrative and not exhaustive. According to

28 jg.fca 5.2016.odt

us, the instance nos. (iv) and (vi) are applicable to the facts

of the present case viz :

i) ........

ii) ........

iii)........

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) ........

vi) Sustained unjustifable conduct and behavior of one spouse actually afecting 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.

From the evidence brought on record, the

respondent has proved the sustained and unjustifable

conduct and behavior of the appellant afecting the mental

health of the respondent and according to us, the said

treatment complained of and the resultant apprehension is

substantial and weighty. The respondent has proved the

feeling of deep anguish, disappointment and frustration in

29 jg.fca 5.2016.odt

him caused by the appellant for a long time which amounts

to mental cruelty.

21. The learned advocate for the appellant has also

relied on the ratio in Savitri Pandey (supra), wherein it was

held : "Mental cruelty is the conduct of the other spouse

which causes mental sufering 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 case in hand, the respondent has proved

that the conduct of the appellant has caused mental

sufering to the respondent and the cruelty is established on

record. The facts of this case do not indicate that cruelty of

30 jg.fca 5.2016.odt

the appellant was ordinary wear and tear of family life. The

learned Family Court has not decided the matter on the

basis of the sensitivity of the respondent. On the other

hand, it had been adjudged on the basis of the conduct of

the appellant which caused mental cruelty to the

respondent. Hence, the ratio in that case does not help the

case of the appellant.

22. The ratio in Anuradha Ghosh Moulik (supra),

would not be applicable to the facts of the present case as

the decree of divorce was not granted to the respondent on

the basis of baseless allegations levelled by the appellant in

her written statements and evidence. The decree in the

present case was granted on the proved fact of cruelty,

therefore ratio of that case does not take the case of the

appellant any further.

23. For the aforestated reasons, we are of the

considered view that the learned Family Court was justifed

in granting a decree of divorce in favour of the respondent

on the basis of the evidence produced before it. No fault

31 jg.fca 5.2016.odt

can be found with the reasons assigned and fndings

recorded by the learned Family Court while granting the

decree of divorce in favour of the respondent. We therefore

answer the point accordingly.

24. We fnd no merit in the appeal fled by the

appellant, hence the appeal is dismissed.

25. Parties to bear their own costs.

                                       JUDGE                       JUDGE


TAMBE