Smt. Kusum, Wife Of Shri R.K. ... vs Shri R.K. Saxena, Son Of Shri O.P. ...
2004 Latest Caselaw 313 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant was married to the Respondent on 17th June, 1979. They lived together only for a few months and since March 1980 they have lived together for short periods on a couple of occasions. In March 1980, the Appellant was dropped at her parental home because she was expecting a child. On 15th May 1980 a female child was born and she is now almost 24 years of age.

2. According to the Appellant, her husband did not even come to visit her or to even see the child with the result that she was compelled to apply to the matrimonial Court some time in October 1980 for restitution of conjugal rights. She says that during the pendency of the restitution petition, her husband's grandmother was taken ill and so she was called to look after her. She stayed for a few days in the hospital where the grandmother was admitted and thereafter in her matrimonial home. It appears that there was some cooling down of differences between the parties with the result that the restitution petition came to be dismissed in default on 15th December 1981. However, soon thereafter the Appellant was again forced by circumstances to go back to her parent's house. According to the Appellant, the parties resumed cohabitation in August, 1984, but again separated in October, 1984.

3. On 11th December, 1984, the Respondent filed a petition seeking a divorce under the provisions of Section 13(1)(ia) of the Hindu Marriage Act (the Act) on the ground of cruelty and under Section 13(1)(ib) of the Act on the ground of desertion. The learned Additional District Judge, who decided the matter being HMA No. 656/85, by the impugned judgment and decree dated 1st September, 1995 granted divorce to the Respondent on ground of cruelty, but dismissed the petition in so far as the allegation of desertion was concerned. Against the decree of divorce granted on the ground of cruelty, the Appellant has filed the present appeal.

4. The cruelty alleged by the Respondent against the Appellant is with regard to three events:

(a) It was alleged by the Respondent that after their marriage was solemnized, the Respondent came to realize that the Appellant was of a quarrelsome nature and she quarreled with members of his family and misbehaved with him. To avoid any confrontation with anybody, the Respondent was compelled to shift his residence as many as five times in a period of nine months. This, according to him shows that he was willing to accommodate the Appellant to any extent, but because of her nature they were not able to peacefully settle down at any place.

(b) The Appellant attempted to pour kerosene over herself on one occasion, with the intention of involving the Respondent and other members of his family in a criminal case, but she was prevented from doing so. This incident so unnerved the Respondent that he had to shift to his aunt's house at short notice.

(c) The general behavior of the Appellant was not proper in as much as she would accuse the Respondent, who was a divorcee, of trying to cheat innocent girls and demanding dowry etc. and in fact the allegation was that he demanded dowry from the Appellant and her parents as well. According to the Respondent these allegations disturbed him immensely because they were not true.

5. The Appellant denied the allegations made by the Respondent. She denied having shifted the matrimonial home five times in a period of nine months. She averred that she did not want to break the matrimonial home; on the contrary, she moved a petition for restitution of conjugal rights. She denied that she had a quarrelsome nature or that she made any allegations against the Respondent of cheating innocent girls for dowry. The attempt to pour kerosene over herself was also denied.

6. On the basis of the pleadings, the learned Trial Court framed the following issues: -

1. Whether the respondent treated the petitioner with cruelty as alleged?

2. Whether the respondent deserted the petitioner for over two years just preceding the filing of the petition?

3. Relief.

7. By the impugned judgment and decree, the learned Trial Judge held that the Respondent was compelled to shift his house on five occasions within a period of nine months. This indicates that he was trying his best to accommodate the Appellant and to keep her happy. It was then inferred from this that the Appellant was not interested in keeping the marriage alive and that she made the life of the Respondent miserable by her quarrelsome nature. With regard to the incident of attempting to put kerosene over herself, the learned Trial Judge noted that there were some minor discrepancies in the statements of the witnesses, but it was held that the incident did occur in the matrimonial home and it was serious enough to have shaken up the Respondent and there was no justification on the part of the Appellant to have enacted such a scene. The learned Trial Judge concluded that the Appellant's allegations that her husband was a greedy person were not correct because even though he had been married earlier, the first marriage was annulled and it was not, therefore, a marriage solemnized by the Respondent for the purposes of enriching himself. Taking an over-all view of the material on record, the learned Trial Judge concluded that the Appellant had inflicted such cruelty on the Respondent that a case for granting divorce on that ground was made out.

8. The Respondent seems to be rather unconcerned with the proceedings because on several occasions in the past he did not appear. On 11th February, 2003 a notice was ordered to be sent to the Respondent with a direction that the matter will be taken up for final hearing. The Respondent appeared on 18th July, 2003 and it was directed that the matter would be taken up for final hearing on 4th November, 2003. On 4th November, 2003 the Respondent did not appear, but his father appeared on his behalf. Since learned counsel for the Appellant requested for an adjournment the matter was adjourned to 15th December, 2003 and again to 12th February, 2004. The matter was eventually taken up for hearing on 8th March, 2004 on which date also the Respondent did not appear, but his father appeared on his behalf. Arguments were heard including those advanced by the Respondent's father and judgment reserved.

9. It is now well settled that there is no clear-cut or complete definition of cruelty. There are, however, a few decisions of the Supreme Court, which explain the circumstances in which the conduct of a spouse may or may not amount to cruelty.

10. In Shobha Rani vs. Madhukar Reddi, the Supreme Court explained the difference between mental and physical cruelty and the standard required for adjudging the conduct of a spouse as cruel. In paragraph 4 and 5 of the Report, it was said:

"Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have 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. It 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 to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, 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. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

"It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes 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. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners."

This is again discussed in paragraph 18 of the Report where it is stated:

"Section 13(1)(i-a) of the Hindu Marriage Act provides that the party has after solemnization of the marriage treated the petitioner with cruelty. What do these words mean? What should be the nature of cruelty? Should it be only intentional, willful or deliberate? Is it necessary to prove the intention in matrimonial offence? We think not. We have earlier said that cruelty may be of any kind and any variety. It may be different in different cases. It is in relation to the conduct of parties to a marriage. That conduct which is complained of as cruelty by one spouse may not be so for the other spouse. There may be instances of cruelty by the unintentional but inexcusable conduct of any party. The cruel treatment may also result by the cultural conflict of the spouse. In such cases, even if the act of cruelty is established, the intention to commit suicide cannot be established. The aggrieved party may not get relief. We do not think that that was the intention with which the Parliament enacted Section 13(1)(i-a) of the Hindu Marriage Act. The context and the set up in which the word 'cruelty' has been used in the section, seems to us, that intention is not a necessary element in cruelty. That word 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, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment."

11. The Supreme Court in V. Bhagat vs. D. Bhagat, explained cruelty to mean conduct that made it impossible for one party to live with another; but, it was also said that what amounts to cruelty in one case may not amount to cruelty in another. In paragraph 16 of the Report, it was said:

"Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."

12. S. Hanumantha Rao vs. S. Ramani, was a case in which the Supreme Court declined to grant a divorce because the alleged acts of cruelty were either non-issues or were blown out of proportions. In paragraph 8 of the Report, it was said:

it is necessary to find out what is mental cruelty as envisaged under Section 13(1)(ia) of the Act. Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party."

13. The Supreme Court declined to grant a divorce to a wife on grounds of alleged cruelty by the husband in Savitri Pandey vs. Prem Chandra Pandey, . In paragraph 6 of the Report, it was explained that cruelty should be of such a nature as to make it injurious or harmful for one spouse to live with the other. The Supreme Court emphasized the need to distinguish it from the normal wear and tear of matrimonial life. It was held:

"Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering 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."

14. G.V.N. Kameswara Rao vs. G. Jabilli was a case in which the Supreme Court said that a few incidents cannot form the basis of cruelty. The change brought about by the Hindu Marriage Laws (Amendment) Act 1976 was adverted to for showing the difference between the concepts of cruelty as it existed earlier and as it exists now. In paragraph 9 and 10 of the Report, it was held:

"Under Section 13(1)(i-a) of the Hindu Marriage Act, on a petition presented either by the husband or the wife, the marriage could be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty. "Cruelty" is not defined in the Act. Some of the provisions of the Hindu Marriage Act were amended by the Hindu Marriage Laws (Amendment) Act, 1976. Prior to the amendment, "cruelty" was one of the grounds for judicial separation under Section 10 of the Act. Under that section, "cruelty" was given an extended meaning by using an adjectival phrase viz. "as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". By the Amendment Act of 1976, "cruelty" was made one of the grounds for divorce under Section 13 ?.

The omission of the words, which described "cruelty" in the unamended Section 10 of the Hindu Marriage Act, has some significance in the sense that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. English courts in some of the earlier decisions had attempted to define "cruelty" as an act which involves conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. But we do not think that such a degree of cruelty is required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct."

15. The core question for the consideration of the Supreme Court in Parveen Mehta vs. Inderjit Mehta was the meaning and import of the expression "cruelty" as a matrimonial offence. The Supreme Court in paragraph 14 of the Report held that statutorily, cruelty includes both physical and mental cruelty. It was said:

"Under the statutory provision, cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, Realizing the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been "conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger" (Russel v. Russel (1897 AC 395 (HL)) and Mulla's Hindu Law, 17th Edn., Vol. II, p. 87).

Referring to the object of the definition, as introduced by the Marriage Laws (Amendment) Act 1976, it was said in the same paragraph as follows:

"The provision in clause (i-a) of Section 13(1), which was introduced by the Marriage Laws (Amendment) Act 68 of 1976, simply states that "treated the petitioner with cruelty". The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct and not fail in some circumstances. By the amendment the legislature must, therefore, be understood to have left to the courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases. It seems permissible, therefore, to enter a caveat against any judicial attempt in that direction (Mulla's Hindu Law, 17th Edn., Vol. II, p. 87)."

16. After citing some of the decisions mentioned above, the Supreme Court explained cruelty in paragraph 21 of the Report and held that an inference of cruelty can be drawn from a cumulative effect of the acts and circumstances on record. It was held:

"Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behavior 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 behavior or behavioral 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 misbehavior in isolation and then pose the question whether such behavior 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."

17. Finally, in Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate, the husband made some serous allegations against his wife in the written statement. These allegations were subsequently withdrawn by moving an application for amendment. While explaining cruelty in this context, the Supreme Court held in paragraph 11 of the Report that there is nothing to suggest that cruel treatment should remain for some period or duration, nor does it depend on numerical counts. Consequently, it was held that the accusations made in the written statement amounted to cruelty within the meaning of the Act. It was held:

"? ? in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. To satisfy the requirement of clause (i-a) of sub-section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitutes the required mental cruelty for purposes of the said provision, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Courts perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only......"

17. On the basis of the aforementioned decisions of the Supreme Court, it can be said that for the conduct of a spouse to amount to cruelty, it should be such as to make it virtually impossible for the other spouse to enjoy a healthy and normal life. Normal instances of wear and tear of matrimonial life would certainly not constitute a cruel conduct so as to necessitate a decree of divorce. Moreover, one has to look at the overall conduct of the parties, and take their sensitivities and sensibilities into account. Even an act or two may amount to cruelty if it results in an apprehension of a spouse that it is not possible to maintain a conducive matrimonial home.

18. Applying these principles to the facts of the present case, the three events mentioned by the Respondent have to be considered cumulatively and it has then to be decided whether the conduct of the Appellant was cruel enough to warrant a decree of divorce in favor of the Respondent.

19. The first and third events are not really events as such or incidents that have occurred. They relate to the general conduct of the Appellant and arise out of allegations that she was a quarrelsome person, who made the Respondent's life unbearable and made wild allegations against him. Although the Appellant has denied the allegations, even if it is assumed that she was quarrelsome because of which the parties shifted their house on five occasions that would not amount to cruelty of such a kind as to break up the matrimonial home, and if it was, there is no explanation why it took the Respondent almost three years thereafter to realize this. Moreover, no evidence has been pointed out to me to show that the parties had to shift their house so frequently entirely due to the conduct of the Appellant. While it can be said that the Respondent was not averse to changing his house so often perhaps to keep the Appellant happy, it can equally be said that the Appellant did not mind shifting house so frequently to be with the Respondent to keep him happy. In other words, mere change of residence, even if it is frequent, without any apparent or any substantial reason having been placed on record, would not reflect on the conduct of either of the parties, particularly since it was not a unilateral act.

20. The fact that the Appellant applied for restitution of conjugal rights would show that she did not want to break up the matrimonial home, more particularly soon after the birth of a child. This is confirmed by the fact that when the grandmother of the Respondent fell ill, the services of the Appellant were requisitioned to help out during the ailment. She agreed to spend some time in the hospital and then in the matrimonial home with the Respondent's grandmother. This would not have been possible if she was of a nature as suggested by the Respondent. The Appellant could have refused to look after the Respondent's grandmother, but she did not do so. I think the learned Trial Judge has erred in concluding that the Appellant was generally of a quarrelsome nature and that it was not possible for the Respondent to get along with her. Even the allegation that the Respondent married for money earlier and then again with the Appellant cannot amount to cruelty, of such impact as to break up the matrimonial home. It is not as if this was the constant refrain of the Appellant. The circumstances in which such an allegation was made are not clear. It may have been during a domestic quarrel or during a temper outburst, one does not know.

21. With regard to the incident of pouring kerosene over herself, I find this to be extremely vague because there is no indication given by any of the witnesses, nor is anything suggested in the impugned judgment and decree, as to when the incident took place. The incident is lacking in material particulars. Assuming that the event did occur, it would have occurred during the nine-month period when the parties lived together. It is too much to expect that the aftershock of the incident so completely unnerved the Respondent for such a long period of time that he continued to feel an adverse reaction till December 1984 when he filed the divorce petition. If the incident was so nerve shattering, he would have applied for a divorce much earlier, rather than wait for almost three years before moving the matrimonial Court. I think the learned Trial Judge has been a little too liberal in accepting the allegations made by the Respondent against the Appellant and granting him a divorce.

22. The overall picture suggests that the parties were not quite comfortable with each other, and no serious effort appears to have been made to reconcile their differences. It is true that there is now a complete break down in the marriage but neither party can be blamed for this. The proceedings in the Trial Court have taken about ten years; in this Court they have taken about nine years. The parties have not seen other or cohabited during this period, and it is not difficult to understand why. But, merely because the marriage has irretrievably broken down due to the passage of time spent in Courts, it would not be legally correct to dissolve the marriage, and grant to the husband his wishes, while denying the wishes of the wife, however sympathetic one may be to the cause of either of the parties or however inclined one may be to legalize the split.

23. I am of the view that the divorce petition filed by the Respondent deserves to be dismissed. Unfortunately, the consequence will be that the parties will have to bear with each other until there is a rethinking in the matrimonial laws to take care of a situation like this. This appeal is allowed, but there will be no order as to costs.

24. The Appellant has been claiming maintenance from the Respondent from time to time. When I took up the matter for hearing on 8th March, 2004, learned counsel for the Appellant stated that maintenance had been paid up to date but CM 601/2002 was pending whereby the Appellant had sought enhancement of maintenance from Rs.4,000/- per month to Rs.6,000/- per month. The father of the Respondent submitted that some important averments have been made by the Respondent in some of the affidavits in the paper book and these should be taken into consideration.

25. The Respondent is an employee with the Delhi Transport Corporation (DTC). A copy of his salary certificate, which has been filed by the Appellant in May, 2002, pertains to his salary for August, 2001. This statement shows that his salary is about Rs.18,000/- out of which there is a deduction of Rs.5,000/- for Provident Fund etc. The take home salary of the Respondent was about Rs.13,000/- at that time.

26. The parties have a grown up daughter, who is about 24 years of age. She has been living with the Appellant since her birth. The Appellant has somehow or the other managed to educate her through school and college. Various order sheets in this case show that the Appellant has been asking for amounts for further education of their daughter and in the recent past for computer education so that she is qualified to take up a suitable job. The Respondent has, of course, paid some amounts towards the education of his daughter, but a major part of the burden seems to have been borne by the Appellant. The father of the Respondent submitted that the computer course, which the daughter was undertaking, was only a device adopted by the Appellant to extract more money from the Respondent. Frankly, I was little surprised that the father of the Respondent should make such an allegation.

27. The daughter of the parties is now of a marriageable age and I have no doubt that she may need to spend some amount for her marriage. The Respondent is earning a fairly substantial amount of which about Rs.5,000/- is going into his personal savings. The least he can do is to adequately maintain his wife and daughter. The prayer of the Appellant for maintenance at Rs.6,000/- per month does not appear to be high at all and works out to roughly 1/3rd of the salary of the Respondent, out of which the Appellant is expected to maintain herself and her daughter while the Respondent keeps the balance 2/3rd. Consequently, I think the prayer made by the Appellant is a little too modest and I see absolutely no reason for turning it down.

28. Accordingly, in so far as CM 601/2002 is concerned I direct the Respondent to pay a sum of Rs.6,000/- per month as maintenance for the Appellant and their daughter. The payment be made effective from the month of March itself. In case the Appellant has any difficulty in obtaining the amount from the Respondent, she is free to approach the Chairman of DTC who may, if necessary, direct that the amount be debited from the salary of the Respondent and payment be made directly to the Appellant.