Preeti Singh vs Santosh Singh
2023 Latest Caselaw 7260 Cal

                                                                              1


                    IN THE HIGH COURT AT CALCUTTA

                        CIVIL APPELLATE SIDE

                           APPELLATE SIDE



Present:

THE HON'BLE JUSTICE HARISH TANDON
         &
THE HON'BLE JUSTICE PRASENJIT BISWAS



                               FAT 265 of 2018
                                    Preeti Singh
                                       Vs.
                                   Santosh Singh


Appearance:

For the Appellant              :      Mr. Soumik Ganguli, Adv.
                                      Ms. Chandana Chakraborty, Adv.



For the Respondent             :      Mrs. Shohini Chakraborty, Adv.

Mr. Syed Julfikar Ali, Adv.

Judgment On                    :      18.10.2023



Harish Tandon, J.:

The wife has filed the instant appeal assailing the judgment and

decree dated 8th February, 2018 passed by the Court below dismissing an

application for dissolution of marriage filed under Section 13 (1) (i-a) of the

Hindu Marriage Act,1955.

The application for dissolution of marriage on the ground of cruelty

was initiated by the wife alleging that the conduct and the behaviour of the

respondent/husband is such which amounts to cruelty. It is further alleged

that the husband is a perverted man and made certain proposals which

were not acceptable to the petitioner and having forced to undergo with such

trauma, it is becoming impossible to live under one shelter. She further

stated in the petition that though she gave birth to four children, three

daughters and one son but unfortunately, the son died which makes

respondent furious and started constant quarrelling and abusing which is

unbearable. She further narrated the incident when the younger brother of

the respondent sexually assaulted her but despite having reported to the

mother-in-law and the respondent, the response was very casual that it is

quite normal in the said society. She further stated that she is at the risk of

danger being in the association of the respondent and the aforesaid act and

the conduct tantamount to cruelty.

The respondent denied all such allegations in the written statement, it

is categorically averred therein that the younger brother lives in Uttar

Pradesh and never used to visit the place of abode of the present parties

and, therefore, the allegation made in the plaint on the alleged incident is

concocted and manufactured for the purpose of securing a divorce. It is

further stated that the appellant grew a relationship outside the marriage

institution with another person being the resident of the said locality and

she was kidnapped by the said person and on the basis of an FIR lodged by

the respondent she was recovered from the custody of the said person .

Though the complaint was lodged as an FIR but ultimately on the basis of

the statement made by the appellant, the investigating officer did not find

that the appellant was kidnapped by him as she voluntarily left matrimonial

home along with him. It is categorically stated in the written statement that

his family was all along happy with the three daughters who are still living

with the respondent and the appellant never care to meet them as well since

the day she left matrimonial home and started living with her parents. It is a

specific stand of the respondent that he tried to bring the appellant on

several occasions; even took the elder daughter along with him but there

was a complete reluctance on the part of the appellant in restoring the

matrimonial relationship. Lastly it is stated in the written statement that the

respondent still bore love and affection towards the appellant and all along

intended and still intending to live the happy conjugal life.

On the basis of the aforesaid facts discerned from the pleading the

parties deposed in the matter. Interestingly, the elder daughter of the

parties also deposed as the second witness of the respondent. We will be

dealing with her deposition later on touching upon the veracity and the

genuinty of the allegations made by the appellant not only in the pleading

but also at the time of deposition.

The case is based upon the element of cruelty and, therefore, it would

be the ardent duty of the Court to ascertain the concept of cruelty engrained

in Section 10 and 13 of the Hindu Marriage Act, 1955.

Cruelty has not been defined in the said Act but from the various

judicial pronouncements it imbibed within itself both mental and physical

cruelty. The obvious reason for not defining the cruelty in the Act can be

reasonably ascertained that the act of cruelty is of varied form and at times

what may constitute a cruelty in a particular case may not be so in the other

more particularly, when the cruelty is founded upon a mental state of the

parties. The well accepted connotation of cruelty in England is that an Act

which would percolate a danger in the mind of the other and imbibing the

sense of insecurity either from the conduct or otherwise that living under

the one shelter would cause danger to life, limb and the health. It is thus a

primary ingredient to constitute a cruelty under the matrimonial dispute

that the conduct and the manner in which one of the spouses is being

treated by the other is such to cause an apprehension in the mind of the

other that living together shall be harmful and injurious. The other complex

method of ascertaining the mental cruelty is because of different cultures,

ethical and moral and the environment based upon a social and economic

condition of the family. The act of cruelty which can be reasonably perceived

in one case may not be a cruelty in the another case because of the disparity

in the environment in which the parties have grown up.

The Apex Court in Parveen Mehta vs. Inderjit Mehta reported in

(2002) 5 SCC 706 has broadly summarised the basic principles on arriving

at a conclusive decision that the act or the behaviour of one party

constitutes a cruelty in the following:

"21. Cruelty for the purpose of Section 13 (1) (i-a) is to 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 infer ence 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 infer ence whether the petitioner in the divorce p etition has been

subjected to mental cruelty due to conduct of the other."

In A. Jayachandra vs. Aneel Kaur reported in (2005) 2 SCC 22 the

Apex Court held that the cruelty may either be mental or physical and may

sometimes be also intentional or unintentional. So far as the physical

cruelty is concerned it can be reasonably ascertained from a tangible state of

thing through a direct evidence but in case of a mental cruelty there is

hardly any evidence coming directly and, therefore, it is an ardent duty of

the Court before it arrived at the conclusion that the act of the other party

amounts to cruelty on the basis of a mental process and the mental effect of

the incidents in the following:

"11. The expression "cruelty" has been used in relation to human conduct or

human behaviour. It is the conduct in relation to or in respect of matrimonial

duties and obligations. Cruelty is a course or conduct of one, which is

adversely affecting the other. The cruelty may be mental or physical,

intentional or unintentional. If it is physical, the court will have no problem

in determining it. It is a question of fact and degree. If it is mental, the

problem present difficulties. First, the enquiry must begin as to the nature of

cruel treatment, second the impact of such treatment in the mind of the

spouse, whether it caused reasonable apprehension that it would be harmful

or injurious to live with the other. Ultimately, it is a matter of inference to be

drawn by taking into account the nature of the conduct and its effect on the

complaining spouse. However, there may be a case where the conduct

complained of its elf is bad enough and per se unlawful or illegal. Then the

impact or injurious effect on the other spouse need not be enquired into or

consider ed. In such cases, the cruelty will be established if the conduct itself

is proved or admitted. (See Shobha Rani v. Madhukar Reddi.).

12. To constitute cruelty, the conduct complained of should be "grave and

weighty" so as to come to the conclusion that the petitioner spouse cannot be

reasonably expected to live with the other spouse. It must be something more

serious than "ordinary wear and tear of married life". The conduct, taking

into consideration the circumstances and background has to be examined to

reach the conclusion whether the conduct complained of amounts to cruelty

in the matrimonial law. Conduct has to be consider ed, as noted above, in the

background of several factors such as social status of parties, their

education, physical and mental conditions, customs and traditions. It is

difficult to lay down a precise definition or to give exhaustive descriptio n of

the circumstances, which would constitute cruelty. It must be of the type as

to satisfy the conscience of the court that the relationship between the

parties had deteriorated to such an extent due to the conduct of the other

spouse that it would be impossible for them to live together without mental

agony, torture or distress, to entitle the complaining spouse to secure

divorce. Physical violence is not absolutely essential to constitute cruelty and

a consistent course of conduct inflicting immeasurable mental agony and

torture may well constitute cruelty within the meaning of Section 10 of the

Act. Mental cruelty may consist of verbal abuses and insults by using filthy

and abusive language leading to constant disturbance of mental p eace of the

other party."

In Naveen Kohli vs. Neelu Kohli, reported in (2006) 4 SCC 558 the

Apex Court held:

"51. The word "cruelty" has to be understood in the ordinary sense of the

term in matrimonial affairs. If the intention to harm, harass or hurt could be

inferred by the nature of the conduct or brutal act complained of, cruelty could be

easily established. But the absence of intention should not make any difference in

the case. There may be instances of cruelty by unintentional but inexcusable

conduct of any party. The cruel treatment may also result from the cultural conflict

between the parties. Mental cruelty can be caused by a party when the other spouse

levels an allegation that the petitioner is a mental patient, or that he requires

expert psychological treatment to r estore his mental health, that he is suffering

from paranoid disorder and mental hallucinations, and to crown it all, to allege

that he and all the members of his family are a bunch of lunatics. The allegation

that members of the petitioner's family are lunatics and that a streak of insanity

runs through his entire family is also an act of mental cruelty."

It is axiomatic to discern the law enunciated by the Apex Court on the

concept of cruelty in relation to a matrimonial dispute. The cruelty more

particularly mental cruelty largely depends upon the custom, the

environment and the mode of life which the parties are accustomed to on

the basis of socio-economic conditions including the cultural and ethical

value; above all the human values attached to their life. It would not be safe

for a Judge to decide the act of cruelty on the basis of their own notion nor

import his values which he acquired in his life both personal and

professional. The Court will attach importance to the cultural and human

values of the parties depending upon the environment in the house where

they are grown up and the culture and custom which they are accustomed

to. Treating all human beings at par in relation to their behaviour may not

be safe course as it varies from a man to man depending upon several

factors which played importance in their life. Above all the most important

ingredient to constitute a cruelty whether the act or the behaviour is such

which is harmful, injurious to the mental health of the other spouse and

percolating a sense of apprehension of danger in life while living together

under one roof. We cannot overlook the radical changes in the society which

is growing fast and capability and incapability to accept the behaviour of

one, may be a factor depending upon a fact of a given case. It is more

individual though have a remote nexus with the community, society and the

environment of a home.

On the broad aspect of the law enunciated, we find it difficult to

accept the act of the respondent constituting a cruelty in the instant case.

We are also oblivion of the law that in the matrimonial case the decision is

not restricted to the act of cruelty pleaded at the time of institution of the

suit but can further be perceived from the unsubstantiated allegation made

by the other party in defence amounting to stigmatising the character of a

person. The wife has narrated the incident relatable to the brother of the

husband but could not prove with a conclusive e vidence in her deposition. It

is a categorical stand of the respondent that the said brother never used to

visit the place of abode of the parties which is further corroborated by the

elder daughter of the parties in her evidence as second witness of the

respondent. In Indian culture, the child is more emotionally attached to the

mother and will not come up to say something which is not true. The

credibility and the reliance upon the deposition of the daughter is more in

comparison to the deposition of the litigating parties in a matrimonial

proceeding.

It leads to another issue when the respondent disclosed the fact that

the appellant was kidnapped by a neighbour and the police re covered her

from his custody. Importantly the evidence of the daughter is to be seen in

this regard where she disclosed the fact that the appellant grew a

relationship with another man. She further disclosed that the appellant

restraint the said daughter not to disclose the said fact as and when the

said person comes in the house of residence of the parties in absence of the

respondent. The aforesaid statement in deposition goes uncontroverted in

the cross-examination at the behest of the appellant. Furthermore, the

respondent never stigmatised the appellant for the aforesaid relationship as

the FIR was lodged for kidnapping of the appellant by the said person which

resulted into a closure on the basis of the statement of the appellant. Such

steps taken by the respondent cannot be construed to have impacted the

character or the person of the appellant and, therefore, cannot constitute

cruelty.

Section 13 (1) (i-a) of the Hindu Marriage Act postulates that the

decree for dissolution of marriage can only be granted on the ground of

cruelty perpetrated by the other side. The moment the act of cruelty has not

been proved against the respondent therein, there is no infirmity and

illegality in the judgment of the Trial Court in dismissing the said

application. Apart from the same, the respondent despite the revelation of

the said fact by the daughter still bore love and affection towards the

appellant and categorically stated in the written statement as well as

deposition that he is still ready and willing to live a happy conjugal life.

Such being the facts discerned from the respective stand of the parties, we

do not find any ground warranting interference with the impugned judgment

and decree.

The appeal is thus dismissed.

No order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be

made available to the parties subject to compliance with requisite

formalities.

      I agree.                                       (Harish Tandon, J.)




(Prasenjit Biswas, J.)