Mrs. Indu Bala Toppo vs Mr. Francis Xavier Toppo
2001 Latest Caselaw 1397 Del

ORDER

Arijit Pasayat, C.J.

1. This is a reference under Section 17 of the Indian Divorce Act, 1869 (in short the Act') seeking confirmation of the decree for dissolution of marriage passed by learned Additional District Judge. Petitioner (hereinafter also referred to as the wife') filed and application under Section 10 of the Act praying for a decree of divorce from the respondent (hereinafter also referred to as the husband') on the ground that cruelty was meted out to her by the husband and his family members. Said prayer was accepted by learned Additional District Judge, Tis Hazari, Delhi in I.D.A. 661 of 1998.

2. Factual background according to the petitioner is as follows:

Parties entered into marital ties on 7th September 1996 and the marriage was solemnized according to Christian rites at Sacred Heart Cathedral, Ashok Place, Gole Dakkhana, New Delhi. Five priests conducted the ceremonies. After they entered into the marital life, husband and his family members did not treat the wife with love, affection and dignity and they expressed dissatisfaction about various arrangements made by the petitioner's parents and she was subjected to torture. She had to bear the barbaric assaults made. The couple left for Siliguri on 17th September 1996 and reached there on 18th September 1996 in the evening and stayed at Bishop's house, Nirmal Hridaya.On 19th September 1996 they visited a relative and on 20th September 1996 reached Darjeeling, where the petitioner had discussed certain religious matters with the priest which were not liked by the husband and he did not talk to the petitioner on the honeymoon trip for about 24 hours. She was shocked to hear, her husband telling the priest that he made a mistake by marrying her.During their stay at Darjeeling/Siliguri, he ignored the newly wedded wife and concentrated his attention and time on the purchase of smuggled articles, which he gifted away to his acquaintances and relations. Ironically, when she desired to give some gifts/presents as an acknowledgement of love, affection and respect bestowed on them by their hosts the respondent got infuriated, and took charge of her entire money. As a result of this behavior, the honeymoon itself turned out to be an emotional disaster. Respondent used to get heavily drunk daily and used abusive language to her and admitted to have married her for the sake of money, as he had full knowledge about her family background. He gave out that since they were only two sisters, the proportionate share in her parents property was to come to her. So me time in October/November 1996, she overhead the respondent maligning her character and that of her parents to his visiting relatives. She was aghast and terribly shocked when one of the visiting relatives. She was aghast and terribly shocked when on e of the visiting relatives implicity advised him to us physical force on her to subjugate herby narrating some instance in which a husband had used physical force in public to subjugate his wife. Respondent expressed his happiness and gratitude for enlightening him and immediately thereafter he tried to put the idea into practice as he shouted abusively , made threatening gestures, but stopped short of physical beating. In December 1996 around X-mas time, he invited his friends for drinks in his bedroom and when she objected to this, she was beaten up till has became unconscious. She was asked to handover the entire salary to his mother and he made it clear not to contribute even a single pie towards the household expenses. However having considered it her moral duty to be a model wife, she bore expenses of daily milk supply, newspaper, servant and other domestic provisions. In March 1997 her father-in-law wanted to construct a house for which petitioner was asked to beg, borrow and provide the money required for the construction. On refusal the respondent hit her with stick, slapped and punched her to browbeat he and also threatened to engage outsiders to physically assault her. Respondent and his parents insisted that the nomination in her provident fund account contributed by her be changed forthwith in favor of the respondent. In February 1997 or early March 1997 the respondent rebuked her as he was not happy with he way she washed his clothes and asked her to buy a washing machine and also asked her father to buy a car for him. On Easter day i.e. 30th March 1997, when the entire family was celebrating the occasion she was called to serve liquor and when she expressed her reservations, she was subjected to humiliation followed by volley of abuses culminating in physical beating till she fell unconscious and when she regained consciousness, she found herself alone in the room bolted from outside. However on her insistence, she was permitted to leave for office with instructions not to go to her parental home. She apprehended danger to her life and could not reconcile to return to the matrimonial home. She stayed with her parents for about a month and thereafter shifted to her allotted accommodation. Respondent called her stray bitch, prostitute woman and told that if she ever conceives a child, he would not accept the child to be his. During the period from 1st May 1997 to 22nd August 1997,she remained at her allotted accommodation. Respondent failed as a husband in his moral and legal obligation to find out the reasons for her non return to the matrimonial home. She submitted a complaint with the "Crime Against Women Cell" on 2nd September 1997 stating therein that her life was in danger and it was impossible for her to stay with the respondent. On 9th October 1997, the respondent returned her Stridhan and other belongings at "Crime Against Women Cell". He maligned her in society by making frivolous and false accusations and even resorted to character assassination.

3. In the petition filed before the trial Court, petitioner has averred that she has not condoned the acts of cruelty committed by the respondents or his relatives. The petition has not been field in collusion with the respondent and there is no unnecessary or improper delay in filing the petition. Respondent did not appear in Court though he was served with notice. The trial Court proceeded with the matter ex parte. In support of her case, petitioner examined herself as PW-1. As the respondent was set ex parte no witness was examined on his behalf. Considering the materials on records learned trial Judge held that petitioner has made out a case for divorce. A decree for divorce was accordingly drawn up and the case has been submitted to this Court for confirmation of the decree.

4. Inspite of notice there is no appearance on behalf of the respondent. We have heard learned counsel for the petitioner.

5. Grounds on which a wife can present a petition for dissolution of marriage are set out in Section 10 of the Act. The said provisions read as follows:

"Section 10:

When husband may petition for dissolution-Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.

When wife may petition for dissolution-Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some religion, and gone through a form of marriage with another woman;

Or has been guilty of incestuous adultery,

Or of bigamy with adultery

Or of marriage with another woman with adultery

Or of rape, sodomy or bestiality,

Or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro

Or of adultery coupled with desertion, without reasonable excuse, for two years or upwards."

6. One of the grounds is adultery coupled with such cruelty,as without adultery would have entitled her to a divorce a mensa et toro. A Special Bench of the Kerala High Court in Ammini E.J. and etc. v. Union of India and Others severed and quashed words "incestuous" and "adultery coupled with" from the provisions in Section 10 of the Act and declared that Section 10 remained operative without the above words. We have proceeded to consider this case with the background legal position.

7. The expression "cruelty" has not been defined. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered int he light of the norms of marital ties of the particular society to which the parties belong, their social values, status environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If form the conduct of his spouse it is established, an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his mental welfare, then this conduct amounts to cruelty. In delicate human relationship like matrimony,one has to seethe probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore one has to be see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse of the acts or omissions of the other, Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In some cases there may not be direct evidence. Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

8. The expression 'cruelty', as noted above has not been defined. It has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course of conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree.If it is mental, the problem presents difficulties. First, the enquiry must begin at 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 cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Sobh Rani v. Madhukar Reddi )

9.To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner's spouse cannot be reasonably expected to live with the other spouse. It must be something more serious more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and backgrounds has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered in the background of serval factors such as social status of parties, their eduction, physical and mental conditions , customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. Cruelty 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 parties to secure divorce. Physical violence is not absolutely essential to constitute cruelty and consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of the Section 10 of the Act. Mental Cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

10. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse 's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

11. The foundation of a sound marriage is tolerance, adjustment and respecting one another.Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage For coming to a conclusion of cruelty, the Judge must consider the impact of the personality and the conduct of one's spouse in view of the other and all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. The courts to do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal coupe or a mere ideal one will probably have no occasion to go to matrimonial court. (See Dastane v.Dastane )

12. In the factual background judged in the legal backdrop highlighted above we accept the reference and confirm the decreeof divorce. Reference is accordingly disposed of.