Vinita Saxena vs Pankaj Pandit
2004 Latest Caselaw 872 Del

JUDGMENT

C.K. Mahajan, J.

1. The present appeal is directed against the judgment dated 19th March, 2001 passed by Additional District Judge dismissing the petition of divorce filed by the petitioner under Sections 13(i-a)(iii).

2. The marriage between the appellant and respondent was solemnized on 7th February, 1993 as per Hindu rites and ceremonies. It was an inter caste love marriage. Out of the said wedlock no child was born. According to the appellant from the first day of marriage, the petitioner was treated with utmost cruelty i.e. mental as well as physical by the respondent and his mother. Prior to marriage, the respondent was suffering from mental disorder and is a case of paranoid schizophrenia and psychopathic disorder. He was under treatment of Dr. Prema Bali who opined that respondent was unable to carry on the marital relationship. However, the said fact was not disclosed to the appellant. After marriage the gravity of illness increased. The mother of the respondent used to instigate the respondent against the appellant because of which he used to become violent and used to beat the appellant from time-to-time. The marriage could not consummated. The appellant filed a divorce petition under Sections 13(i-a)(iii) of the Hindu Marriage Act for dissolution of marriage on the grounds of cruelty and mental disorder on 4th July, 1994, which was dismissed by order dated 19th March, 2001. The Trial Court held that the incidents of cruelty as explained by the appellant do not come within the scope of cruelty as the appellant failed to give specific dates of incident and did not report the matter to the police. After considering the evidence of witnesses, the Trial Court further held that petitioner was not suffering from paranoid schizophrenia disorder. Aggrieved by the said order, the appellant has preferred the present appeal.

3. The appellant assails the impugned judgment on the ground that the Trial Court did not appreciate the uncontroverter evidence of the petitioner on several issues, which prove the case of the appellant that she was treated with cruelty and also that respondent was suffering from mental disorder. In her statement, the appellant deposed on oath that she was blamed by her mother-in-law for respondent's illness. This was not controverter by the respondent in the cross-examination of the petitioner. This proves that respondent was suffering with an illness/ailment. The Trial Court further failed to appreciate the medical record, deposition and medical description of respondent's disease, which proves that respondent was suffering from mental disorder. The Trial Court failed to appreciate the unrebuted evidence of the petitioner that she was denied the matrimonial bliss of physical relation by the respondent because of his incompetency, which constituted cruelty.

4. The appeal is opposed by the respondent. It is contended that the judgment passed by the learned Trial Court is a detailed and reasoned judgment and does not suffer with any legal infirmity. While delivering the judgment, the Trial Court considered the facts and circumstances of the case and the evidence on record. The present appeal lacks bona fide, is perverse, concocted and just to harass and humilitate the respondent. It is not maintainable in the eyes of law as the same has been filed by the appellant's father on the basis of alleged power of attorney, which was not produced along with appeal. The power of attorney dated 27th August, 2002 is not legally tenable as the same was prepared after filing of the appeal and was executed in New York but witnessed in India and also notarised in India, Under Hindu Marriage Act, any petition/appeal on the basis of power of attorney is not maintainable as the Supreme Court has held that it is not like any other commercial suit where provisions of CPC can be implemented strictly. Any proceedings under Hindu Marriage Act is between husband and wife and the only parties which the Court shall like to hear in matrimonial matters is husband and wife and not their parents. Unlike other civil suits/petitions, the power of attorney cannot verify the facts of the case under Hindu Marriage Act. Delhi High Court rules provides that petition for divorce should be signed by the petitioner. All subsequent pleadings and proceedings arising from such petition and answer shall be filed and carried on in the same manner as before directed in respect of an original petition and answer thereto so far as such directions are applicable. Thus, the appeal is liable to be dismissed.

5. I have heard learned Counsels for the parties.

6. The word "cruelty" has not been defined. It is to be seen in the facts and circumstances of each case. A set of facts stigmatised as cruelty in one case may not be so in another case.

7. In the celebrated English decision King v. King, 1952 (2) All England Reports 584, Lord Normand observed as under:

"The general rule in all questions of cruelty is that the whole matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complains accusations or taunts. willful accusations may be made which are not true and for which there are no probable grounds and yet they may not amount to cruelty. To take an obvious example, they may have been provoked by the cruel conduct of the other spouse. There is in many cases no easy rule, no clear line of demarcation which divides cruelty from something which does not amount to cruelty."

8. In the case of Harton v. Harton, (1940) 3 All E.R. 380 it was observed that:

"Mere conduct which causes injury to health is not enough. If he marries a wife whose character develops in such a way as to make it impossible for him to live happily with her, I do not think that he establishes cruelty merely because he finds that life with her is impossible. He must prove that she has committed willful and unjustifiable acts inflicting pain and misery upon her and causing injury to his health."

9. In the case of McEwan v. McEwan, 1964 108 Sol. Jo 198 CA, Lord Denning held that:

"Cruelty being a question of fact the circumstances of each case must be taken into consideration, including the physical and mental condition and the position in life of the parties. However, the conduct complained of must be serious and higher than the ordinary wear and tear of married life."

10. The House of Lords in the case of Gollins v. Gollins, (1964) A.C. 644 held as under:

"A distinction can be drawn between cases involving "unequivocal" conduct, which is conduct which clearly constitutes cruelty, and those involving "equivocal" conduct, conduct which may in certain circumstances amount to cruelty and in other circumstances not do so. The cruelty alleged here is plainly in the second category. There is no fundamental distinction between cruelty which gives rise to grounds for judicial separation and that which gives rise to grounds for divorce. The principles so far evolved from the authorities serve well enough in deciding cases in the first category, but there is no other guidance where the conduct complained of may be described as negative, or indirect, or not aimed at the other spouse or as unaggressive."

11. This Court in the matter of Smt. Maya v. Brij Nath, AIR 1982 Delhi 240, while dealing with concept of cruelty in the Hindu Marriage Act observed as under:

"Cruelty has not been defined in the Act. But it is now well settled that the conduct should be grave and weighty so as to make cohabitation virtually unendurable. It must be more serious than the ordinary wear and tear of marriage. The cumulative conduct taking into consideration the circumstances and the background of the parties has to be examined to reach a conclusion whether the act amounts to cruelty. The petitioner in a divorce petition has to prove that he was treated with cruelty. The burden of proving the cruelty lies on him."

12. In Dastane v. Dastane, I , the Supreme Court held as under:

"that where an allegation of cruelty is made, the inquiry has to be 'whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent'.

'It is not necessary, as under the English Law, that the cruelty must be of such a character as to cause "danger" to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other....But under Section 10(1)(b), harm or injury to health, reputation, the working career or the life, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty.

Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the Principles of English Law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent'."

13. The Supreme Court in the case of Shobha Rani v. Madhukar Reddi, I observed as under:

"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 denied. 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 inquiry 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 whether 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 us and the parties. It would be better if we keep aside our customs and manners. It would also better if we less depend upon precedents."

14. The Supreme Court in the case of V. Bhagat v. Mrs. D. Bhagat, , has defined mental cruelty in the following manner:

"Mental cruelty in Section 13(1)(ia) 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 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 a 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."

15. Lord Denning in Sheldon v. Sheldon, (1966) 2 All E.R. 257, 259 observed as under:

"The categories of cruelty are not closed. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behavior, capacity or incapacity to tolerate the conduct complained of. Such is the wonderful realm of cruelty."

"The conduct of the habitual drunkard, the gambler, the criminal or the profligate may cause his wife to break down in health but it is not cruelty unless combined with some conduct which is aimed at her, as, for example, when her justifiable remonstrances provoke unjust resentment on his part directed at her."

16. In light of the principles laid down by the various Courts including the Supreme Court, let me examine the case of the appellant. The appellant sought divorce on the ground of respondent's mental disorder and cruelty that she was given beatings; on 4.7.1993 she was blamed for the respondent's illness and was beaten mercilessly by respondent on the instigation of her mother-in-law and she was not having any physical relationship with the respondent because of his incompetency as he was suffering from paranoid schizophrenia. These allegations were denied by the respondent. On the basis of pleadings of the parties, following issues were framed:

(1)    Whether the respondent has treated the petitioner with cruelty?
 

(2)    Whether the respondent is suffering from paranoid schizophrenia disorder or any other mental disorder to such an extent that it is not reasonably expected to live with him. If so, if effect?
 

(3)    Relief. 
 

17. The appellant examined herself as PW 1, her father Mr. J.S. Arora, PW 2, Dr. D.S. Arora, PW 3 and Dr. Kuldip Kumar, PW 4.
 

18. In order to prove issue No. 2, the appellant in her deposition stated that respondent was suffering from paranoid schizophrenia and was incompetent to perform sex, therefore, the marriage was not consummated. She came to know about the mental disorder of the respondent after marriage. However, in her cross-examination she stated that she and respondent were class mates during the period from 1987 to 1990. During that period she did not find any abnormality in the behavior of the respondent. Further the appellant failed to exam in the doctors, who treated the respondent. There was contradiction between the statement of appellant and Dr. D.S. Arora as to whether the respondent was admitted in Ashlok Hospital due to consumption of baygon spray or as a schizophrenic case. After carefully examination of the evidence of the aforesaid witnesses, the Additional District Judge rightly came to the conclusion that appellant had failed to prove this issue. Accordingly, he concluded that respondent was not suffering from paranoid schizophrenia disorder at all. The submissions of the appellant that the Additional District Judge failed to appreciate the medical record, deposition and medical description of respondent's disease, which proves that respondent was suffering from mental disorder are without substance. The Supreme Court in the matter of Ram Narain Gupta v. Rameshwari Gupta, II , held that mere branding of spouse as schizophrenic is not sufficient. Degree of mental disorder of the spouse must be proved to be such that petitioning spouse cannot reasonably by expected to live with order. The testimonies of the doctors examined by the appellant to prove the respondent was suffering from schizophrenia cannot be looked into as the respondent was not under their treatment and they were unable to explain the degree of mental disorder of the respondent.

19. In order to prove Issue No. 1, the appellant stated that she was beaten by the respondent on several occasions. However, details have not been given. Only one instance has been disclosed. On 4th July, 1993 appellant was blamed for the respondent's illness and was beaten mercilessly by the respondent on the direction of her mother-in-law. Another incident of cruelty as narrated by the appellant was that the appellant was not having any physical relationship with the respondent as the respondent was a patient of schizophrenia and was incompetent to have physical relationship. In her cross-examination, she stated that she did not lodge any complaint with the police authorities regarding the beatings as alleged. She failed to give exact date, month and year when she was given beatings. She further stated that she was beaten off and on. She informed her father about mental disorder of the respondent after three months of her marriage. However, the father, PW 2, in his testmony stated that petitioner apprised him of mental disorder of respondent after 5-6 days of the marriage. The alleged beating of the appellant by the respondent on 4th July, 1993 was not corroborated by PW2. He, however, stated that on 9th July, 1993, the appellant came to his house and disclosed that her husband and his mother had given her beatings and turned her out of the matrimonial home. However, this incident was not disclosed by the appellant in her testimony.

20. The conduct charged as cruelty is to be of such a character as to cause in the mind of the appellant a reasonable apprehension that it will be harmful or injurious for the appellant to live with the respondent. Cruelty must be of such a character as to cause danger to life, limb or health or as to give rise to a reasonable apprehension of such a danger. The appellant was required to prove that respondent had treated the appellant with such cruelty as to cause a reasonable apprehension that it will be harmful or injurious for the appellant to live with the respondent, which she failed to do so. There is insufficient material on record including the evidence of the parties to establish the cause of cruelty. Thus, the Additional District Judge rightly observed that the incidents of cruelty narrated by the appellant were not so grave which come within the scope of concept of cruelty. The impugned judgment/order does not suffer from any legal infirmity. I do not find any merit in the present appeal.

Dismissed.

Trial Court record be sent back.