Delhi High Court

Sh.Shiv Nandan Sachdeva vs Smt.Ruby on 12 December, 2008

Author: V.B.Gupta

*       HIGH COURT OF DELHI : NEW DELHI

                   MAT App. No.105 of 2008



%             Judgment reserved on: 4th December, 2008

              Judgment delivered on: 12th December , 2008


Sh. Shiv Nandan Sachdeva
S/o Sh. Chaman Lal Sachdeva
R/o S-524, School Block,
Vikas Marg, Shakarpur,
Delhi-110092.                               ...Appellant

                     Through: Mrs. Rani Chhabra, Adv.

                              Versus

Smt. Ruby
D/o Late Sh. Sardari Lal Chabra
R/o 5187, Gali Bal Kishan,
Basant Road, Paharganj,
New Delhi-110055                           ...Respondent

                     Through: Nemo

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                           Yes

2. To be referred to Reporter or not?                        Yes

3. Whether the judgment should be reported
   in the Digest?                                            Yes



MAT App. No. 105 of 2008                      Page 1 of 27
 V.B.Gupta, J.

This appeal has been filed by the appellant

(Husband) under Section 28 of Hindu Marriage Act,

1955 (for short as „Act‟) against the judgment and

decree dated 20th August, 2008 passed by Sh. Man

Mohan Sharma, Addl. District Judge, Delhi whereby

the petition of the appellant for divorce has been

dismissed.

2. The brief facts of the case are that marriage

between the appellant and respondent was solemnized

according to Hindu rite and ceremonies on 11th

December, 1990 at Delhi. From this wedlock, one

female child was born to the parties on 27th October,

1994. In the matrimonial home the relatives, the

appellant and his parents gave congenial environment

to the respondent for establishing the happy and

prosperous life but all invain because from the

beginning, the behavior of the respondent was very

cruel, unsocial and rude. The appellant was compelled

to live apart from his parents and vacated the

matrimonial home on 6th June, 1991 i.e. within 6

months of the marriage. Both the appellant and the

respondent started to live separate from the parents of

the appellant but the behavior of the respondent did

not change. Rather the respondent became more

aggressive, violent, rude and uncooperative, etc. Even

after the birth of the female child the behavior of the

respondent continued to be rude. Infact she used to

beat the minor child and throw away the minor child so

as to give mental torture to the appellant.

3. One day the respondent threw away the minor

child and abused both the child and the appellant and

left the matrimonial home and went to her parents

house without permission of appellant. Regarding this

a police report was made on 1st January, 1995.

4. Due to extreme mental torture and fear of danger

to life by the respondent and her brothers, the

appellant had to leave the last matrimonial home

where they last resided together on 15.08.1998. In this

regard complaint was also filed vide no. DD No. 7-A

dated 15.08.1998.

5. The appellant started to live separate from the

respondent and in the meantime, a complaint was

lodged by the respondent in the Crime against Women

Cell. In September, 1998 the appellant was called by

the Enquiry officer and after some hearing the

complaints were withdrawn by the respondent.

6. On 11.01.1999 a mutual agreement was entered

into by the appellant and the respondent before the

Enquiry officer Shri Vijay Rawat, as the respondent

was not interested in leading the matrimonial life with

the appellant.

7. The appellant complied with all the terms and

conditions of the agreement, but respondent inspite of

getting all type of assets, did not come forward to file

the mutual divorce under section 13-B (1) of the

HMAct but instead threatened the appellant.

8. The appellant saw the respondent roaming

around riding on a scooter with a person named Sh.

Sujeet Kumar with whom the respondent got herself

remarried in February, 2001 without getting legal

divorce from her present husband i.e. appellant.

Several legal notices dated 27.02.2002, 26.12.2002

and 30.12.2002 were served upon the respondent but

neither the respondent nor any family member, had

bothered to reply to the said notices.

9. A public notice was also given in Rashtriya

Sahara, Hindi Edition on 22.04.2006 but neither the

respondent nor any family member cared to reply for

the same.

10. That there is no collusion between the parties and

they are not cohabiting with each other since

15.08.1998.

11. Despite service by publication, respondent did not

appear before the Trial Court and she was proceeded

ex parte on 2nd June 2008.

12. It has been contended by the Ld. Counsel for the

appellant that he had suffered a severe torture and

harassment from the Respondent side and in the

compelling circumstances was left with no option but

to live separately from his family. The case of the

Appellant is squarely covered under the mental cruelty

as defined under section 13 (i)(a) of the Act. The Trial

Court ought to have seen the fallacy of the fact that

despite being served and knowing about the

seriousness of the matter, the respondent avoided to

appear in the Court or to give any satisfactory reply to

the same which is a clear indication of willful neglect

of the Respondent. Respondent has not only withdrawn

from the company of the appellant but also re-married

with other person, without obtaining legal divorce from

the appellant.

13. It is further contended that the Trial Court erred

in holding that no specific averments with regard to

the incident are stated whereas, copies of FIR‟s were

annexed stating the behaviour of respondent and also

the evidences produced by the appellant remained

unrebutted.

14. The act of respondent in violating the terms and

conditions of the agreement dated 11.1.1999 by not

filing petition for mutual divorce under section 13(B)(l)

of HMAct, itself amounts to cruelty and she has

committed the offence of bigamy by marrying another

man when her present husband i.e. is the appellant is

still alive.

15. Learned counsel for the appellant also contended

that just because the adulterer was not made a party,

does not discharge the respondent from the offence of

adultery as the adulterer is not a necessary party and

therefore not impleaded as a party.

16. Before delving with the contention of the

appellant it is necessary to bring out the relevant

provisions of the Act.

17. Cruelty is a ground for divorce under Section 13

of the Act and it provides, so far as is material;

"13. Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) xxx xxx xxx xxx

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) to (vii) x x x x Explanation- x x x x"

18. The word 'cruelty' has not been defined in the

Hindu Marriage Act. D. Tolstoy in his celebrated book

"The Law and Practice of Divorce and Matrimonial

Causes" (Sixth Edition, p. 61) defined cruelty in these

words:

"Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such a 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."

19. The Shorter Oxford Dictionary defines "cruelty"

as "the quality of being cruel; disposition of inflicting

suffering; delight in or indifference to another's pain;

mercilessness; hard-heartedness".

20. The term "mental cruelty" has been defined in

Black's Law Dictionary [8th Edition, 2004] as under:

"Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse."

21. The concept of cruelty has been summarized in

Halsbury's Laws of England [Vol.13, 4th Edition, Para

1269] as under:

"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the

cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits."

22. In 24 American Jurisprudence 2d, the term

"mental cruelty" has been defined as under:

"Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse."

23. In Dr. N.G. Dastane v. S. Dastane, AIR 1975

SC 1534, the Apex Court has observed as under;

"...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".

24. In the case of Shobha Rani v. Madhukar Reddi,

AIR 1988 SC 121, the Apex Court has observed as

under;

"Section 13(1)(ia) uses the word "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 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. 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."

The Court further observed;

"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 the 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, that 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."

25. In the case of V. Bhagat v. D. Bhagat, (1994) 1

SSC 337, the Apex Court has observed as under:

"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 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 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."

26. Again in Savitri Pandey v. Prem Chandra

Pandey, AIR 2002 SC 591, the Apex Court has

observed as under;

"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."

27. In Praveen Mehta v. Inderjit Mehta, AIR 2002

SC 2582, the Apex Court has laid down as to what

constitute cruelty;

"Cruelty for the purpose of Section13(1)(ia) 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 the 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."

28. Again in A. Jayachandra v. Aneel Kaur, AIR

2005 SC 534, a three judge Bench of Apex Court

observed that ;

"The expression „cruelty‟ has not been defined in the Act. 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 in the 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 from the conduct of his spouse same is established and/or 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 or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the 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 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 because 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 cases where there is no 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."

The Court further held;

"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 considered, 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 description 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 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 peace of the other party.

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 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.

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. 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. A too technical and hyper- sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court."

29. The Apex Court in Vinita Saxena v. Pankaj

Pandit, AIR 2006 SC 1662, has observed as under;

"As to what constitute the required mental cruelty for purposes of the said provision, 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 court 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."

30. Now, the acts of cruelty as pleaded by the

appellant have to be analyzed in the view of evidence

produced by the appellant as well in what manner the

Trial Court has dealt with the issue of cruelty and

adultery.

31. The appellant examined himself as PW1 and has

given statement on oath reiterating and reasserting

the grounds and the allegations pleaded in the petition.

The appellant relied on complaint Ex.P3 and Ex.P4,

lodged by him with the police against the respondent,

complaint lodged by respondent in the crime against

women cell for which he was summoned vide notice

Ex. P.5, the Mutual agreement reached between

respondent and appellant vide Ex.P.6., the complaint

lodged by the appellant against the threats given by

respondent vide Ex.P.10, the notices sent to

respondent Ex.P.11, Ex.P.12, Ex.P.13, marriage

certificate which is Ex.P.15, photograph of marriage

Ex.P.16, birth certificate of female child born to

respondent from her second marriage Ex.P.17.

32. The trial court in the impugned judgment has

held;

"The averments of the petitioner and the evidence on the point of cruelty are entirely vague and mostly in the nature of opinions and inferences. The

petitioner has failed in giving the specific facts from which the inferences of cruelty can be drawn."

"The evidence of the petitioner is also lacking in specific and material facts which compelled him to live apart from his parents. The allegations of aggressive, violent, rude and un- cooperative acts of the respondent are omnibus and vague. No specific facts have been laid down from which such conclusions and inferences can be drawn. It has also not been explained or established on record what circumstances have forced him to leave his house on 15.8.98. However the complaints Ex.P.3 and Ex.P4 do contain certain specific averments and instances of cruelty and the said documents have been relied upon by the petitioner in the petition itself. These complaints Ex.P3 and P4 narrate the various incidents of cruelty. However these complaints have not been proved by the petitioner in accordance with law. These documents Ex.P3 and P4 are secondary evidences being the record of complaint lodged by the petitioner. The petitioner has neither brought the copies of the complaints lodged by him with the police nor has summoned the officials concerned to prove Ex.P3 and P4." It also held;

"The petitioner has only proved the notice received by him from CAW Cell Nanak Pura as Ex.P 5 but has not filed

or proved the complaint lodged by the respondent pursuant to which he was summoned by the CAW Cell. He has also not stated as to what was false or fabricated in the said complaint. For want of the complaint the court cannot go into the question whether its contents are false or fabricated or whether they constituted cruelty or not. The petitioner has not summoned any official from CAW Cell, Nanak Pura, to summon/prove the said complaint filed by the respondent and it could only be thereafter he could prove the falsity or otherwise of the complaint." "The petitioner has relied upon an agreement between himself and respondent as Ex.P6 but has neither proved the signature of himself or the signature of the respondent on the same nor has brought into the witness box ant attesting witnesses to the agreement Ex.P6."

Further, the trial court held; "There is no evidence on record to prove the re-marriage of the respondent with one Sh.Sujeet Kumar except one marriage certificate issued by Arya Samaj Bhogal(Jang Pura) as Ex.P15 or one photo copy of photograph of marriage as Ex.P16. The petitioner has not summoned any witness from the temple to prove the marriage and the ceremonies of marriage of the respondent with the third person. The negative of the photograph, being the primary evidence, has not been brought

on record nor the photographer concerned called as a witness. No fact has been established on record that the primary evidence has been destroyed or not available to be entitled to lead secondary evidence. Therefore, this aspect of averment is also not proved by the petitioner."

"Most of the averments in the petition are in the nature of conclusions, inferences and opinions. It is the obligation of a party to furnish facts and it is the prerogative of the court to draw inferences from the facts established on record. An inference drawn by the parties is neither a fact nor the evidence. Opinion evidence of the expert witnesses only is admissible u/s 45 Evidence Act. The petition and evidence of the petitioner is entirely lacking on this aspect and petitioner has hurried to give inferences without establishing the necessary facts on record. The petitioner has failed to prove his case."

33. Rule 7 of Hindu Marriage Act Rules, 1979,

prescribes as to what should be the content of the

petition filed under the Act. It states that;

"In addition to the particulars required to be given under Order VII, Rule 1 of the Code of Civil procedure and

Section 20(1) of the Act, all petitions under sections 9 to 13 of the Act shall state:

(a to f) xxx xxx xxx

(g) the matrimonial offence or offences alleged or other grounds, upon which the relief is sought, setting out with sufficient particularity the time and places of the acts alleged, and other facts relied upon, but not the evidence by which they are intended to be proved e.g.;

(i to iii) xxx xxx xxx

(iv) ......in the case of cruelty, the specific acts of cruelty and the occasion when and the place where such acts were committed."

34. In light of these rules it is to be seen as to

whether the appellant has specifically disclosed any

incident of cruelty or not.

35. As regards the statement of the appellant that the

respondent was rude, cruel and unsocial, no facts are

stated from which an inference of her behavior can be

drawn. Nothing has been stated as to what actually

caused insults or abuses to the appellant or his

parents.

36. No specific averments have been mentioned as to

what compelled the appellant to stay apart from his

parents.

37. In the complaint Ex.P.3, the appellant states that:

"I separated from my parents on 6.6.1991. My wife has been fighting with me she hurls threats to do all justifiable and unjustifiable action. My parents live separately both my sisters live separately. She threatens to get raped and kidnapped by her brother Sanjay and get his parents killed."

38. No dates of a single incident has been mentioned

as on which date respondent had threatened the

appellant and on which date she threatened to rape

and kidnap herself by her brother Sanjay and get his

parents killed.

39. In light of this complaint, no inference can be

drawn as to how the acts of the respondent caused

mental cruelty to the appellant. All the facts stated are

opinion based and nothing is proved as to what

actually caused harassment to the appellant. The

allegations of aggressive, violent, un-cooperative are

omnibus and vague.