Delhi High Court

Mrs. Flora Bose vs Suproti Bose on 20 August, 2010

Author: Aruna Suresh

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    FAO 163/1997

                                          Date of Decision: August 20, 2010


MRS. FLORA BOSE                                         ..... Appellant
              Through:              Mr. Sunil Mittal, Advocate

                            VERSUS

SUPROTI BOSE                                             ..... Respondent
                     Through:       Nemo.

%      CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

(1)    Whether reporters of local paper may be allowed to see the
       judgment?

(2)    To be referred to the reporter or not?                           Yes

(3)    Whether the judgment should be reported in the Digest?           Yes

                            JUDGMENT

ARUNA SURESH, J.

1. Under challenge in this appeal is the judgment and decree of the

learned Additional District Judge dated 8th April, 1997 whereby the

petition of the appellant filed under Section 13 (1) (ia) and (ib) of the

Hindu Marriage Act was dismissed.

2. Succinctly, the facts of the case are that parties to the petition were

married on 8.12.1974 according to Hindu rites and ceremonies. One

male child Ankur Bose was borne out of the wedlock on 7.8.1978.

Respondent is an alcoholic. Many a times he remained out of job

and under the influence of liquor and even otherwise he used to treat

the petitioner with cruelty. Respondent had to vacate the rental

premises on account of non payment of rent and petitioner had to

depend for financial support on her parents. Respondent had stopped

taking care of the family needs. After vacating the rented

accommodation parties started living in the house of Petitioner‟s

parents. After shifting to her parents house, petitioner continued

with her job and in the evenings she started going to theater leaving

her child in the care of her parents because Respondent did not show

any inclination or interest to look after the child. Petitioner became

pregnant again, to which Respondent expressed his shock and

disowned the child as his own. He suspected her fidelity and

Petitioner had to go for medical termination of the pregnancy. To

meet his drinking habit, he used to take money from the Petitioner or

her parents and some times even sold out household articles.

Petitioner was allotted a flat and Respondent wanted to sell the

allotment letter to which Petitioner did not agree. This resulted into

hurling of abuses and physical beatings to the Petitioner by the

Respondent. The disputes and differences increased to the extent

that parties stopped their physical relations. Petitioner sought

guidance from a voluntary organization „Saheli‟, where Respondent

was called and the differences were reconciled with a view to restart

the matrimonial life. Parties started living together w.e.f.

20.08.1989. However, disputes and differences continued as before.

On 2.12.1989, allegedly a scene was created in the house and

Respondent took out a kitchen knife to assault the Petitioner but,

when their son intervened, he sustained injuries and was

hospitalized. Petitioner lodged a complaint about this incident with

the police on 3.12.1989. Since 2.12.1989 parties are living

separately.

3. Respondent has refuted the allegations of the Petitioner that he is

alcoholic or that he had been beating his wife and the child or that he

did not take care of him or that he had no interest in the child. He has

alleged that he never deserted the Petitioner but was forced to leave

the house on 2.12.1989. He has also alleged that he had to vacate the

rented accommodation because of eviction decree suffered by him

for bona fide necessity and not on account of non payment of rent.

4. On the pleadings of the parties, following issues were framed for

consideration by the Court:-

(1) Whether the Respondent has treated the Petitioner with cruelty as

alleged?

(2) Whether the Respondent has deserted the Petitioner for continous

period of two years immediately preceding the presentation of the

petition as alleged?

(3) Relief.

5. Respondent has been contesting the appeal in person. On 6th

August, 2009 he had stated that he was ready and willing to divorce

the Petitioner by mutual consent provided he was given half share in

MIG flat No.57-D, Pocket IV, Mayur Vihar, Phase-1, in which he

claimed himself to be the co-owner with the appellant. He had also

agreed that if the appellant was able to show Conveyance Deed in

her favour in respect of the said flat, he would divorce her.

Thereafter the matter was listed for 12th August, 2009 with the

direction to the appellant to produce the Conveyance Deed of the

said flat. However, on 12.08.2009, the Respondent did not appear

though appellant had brought the original Conveyance Deed

executed in her favour by the DDA in respect of the said flat.

ISSUE NO.1.

6. Mr. Sunil Mittal counsel for the appellant (being referred to as

Petitioner) has submitted that the Trial Judge while delivering the

impugned judgment, has not carefully examined the statement of the

witnesses of the parties and erred in disbelieving the Petitioner‟s

assertion that Respondent indulged in heavy drinking and thereafter

caused physical and mental cruelty to her only on the ground that

there was no documentary evidence or complaint made by the

Petitioner regarding the drinking habit of the Respondent and the

cruelty perpetuated by the Respondent on the Petitioner under the

influence of liquor. He was weighed by the fact that Respondent had

taken another premises on rent at Chitranjan Park after vacating the

earlier premises. While observing that he was employed and if he

was alcoholic and unemployed, he could not have afforded the rented

accommodation in Chitranjan Park. He has argued that the trial

Court failed to take notice of the complaints Ex.PW-1/3 and

Ex.PW1/5 lodged by the Petitioner with the police.

7. It is further argued that the Trial Court went wrong while observing

that the allegations of beatings levelled against the Respondent and

forcing her to sell allotment papers of DDA flat because of which

she had to suffer serious mental pain and agony are general in nature

as there was no complaint of receiving any physical injury or bodily

injury but she complained of having suffered mental torture and

agony. He further emphasized that the Trial Court went wrong in

observing that there is no complaint or any evidence produced by the

Petitioner to show that she was being asked by the Respondent for

disposal of the flat and the allegations appeared to be exaggerated. It

is also argued that Trial Court committed an error in disbelieving the

Petitioner that she had to go for medical termination of her

pregnancy because of the allegations levelled by the Respondent

against her that she had become pregnant through someone else. The

Court also went wrong in appreciating that she would not have

continued to live with the Respondent for the sake of the child, yet

she did not raise any whisper, neither to any of her relations nor to

the relations of the Respondent. The Court also did not properly

appreciate the statement of the Petitioner that Respondent was not

working anywhere after November, 1982, when it observed that

Petitioner did not summon the record of M/s. Akshay Industries or of

M/s. Greaves Cotton Industries to prove when Respondent left their

services and that the Petitioner therefore failed to discharge the onus

of proving that Respondent was unemployed. Counsel for the

appellant has emphasized that the findings of the trial Court on each

and every acts of cruelty as narrated by the Petitioner in the petition

and proved in evidence by way of her own testimony are erroneous

and perverse in nature.

8. Learned counsel for the Petitioner has relied upon following cases:-

(1) Smt. Vimla Mehra vs. Shri K.S. Mehra, 2009 III AD (Delhi) 11;

(2) Samar Ghosh vs. Jaya Ghosh, JT 2007 (5) SC 569;

(3) Geeta Jagdish Mangtani vs. Jagdish Mangtani, 2005 Indlaw SC 561;

(4) A. Jayachandra vs. Aneel Kaur, 2004 Indlaw SC 1034;

(5) Vinita Saxena vs. Pankaj Pandit , 2006 (87) DRJ 655 (SC);

(6) Naveen Kohli vs. Neelu Kohli, 2006 (87) DRJ 630 (SC);

(7) Rajinder Pershad (dead) by LRs. vs. Smt. Darshana Devi,

2001 VI AD (SC) 272.

9. In brief, the acts of cruelty alleged in the petition are :-

(1) Respondent is an alcoholic and under the influence of liquor,

he had been indulging in verbal abuses and physical beatings

to the appellant.

(2) To meet his financial requirements as well as his need for

liquor, he had been making monetary demands on the

appellant and her parents and also mentally and physically

tortured her for fulfillment of his demands.

(3) Appellant registered a flat in her name with the DDA. On

allotment of the said flat Respondent pressurized, abused and

harassed her to sell the allotment letter but, Petitioner did not

succumb to his pressure.

(4) Respondent continued with his habit of drinking heavily and

even failed to pay rent and suffered eviction. With the result

parties had to reside in the house of parents of the Petitioner.

(5) In 1981 Petitioner conceived for the second time but

Respondent suspected her fidelity and disowned the child as

his and indulged into causing mental and physical torture to

her. Petitioner had to undergo medical termination of

pregnancy, but for sake of the child, she continued to live with

him.

(6) In May, 1989 Respondent came back home heavily drunk and

gave her physical beatings, abused her, threw utensils and spit

and vomited on her and quarreled with her the whole night.

Appellant had to leave the home in the morning.

(7) With the intervention of social organization „Saheli‟, parties

were reunited on 20.09.1989. However, there was no

improvement in their relationship. On 2.12.1989 a quarrel

ensued between the parties when Respondent came home

drunk at about 11:00 P.M. He allegedly picked up a knife and

threatened to kill the appellant. However, the child intervened

and received injuries on his person. Appellant made a

complaint at Police Station Mayur Vihar and the child was got

medically examined. Respondent left the company of the

Petitioner on 3.12.1989 and since thereafter parties are living

separately.

10. Parties to the petition were known to each other even before

marriage as they were working in the same theater and had been

meeting with each other before they took the decision to get married.

11. Appellant as PW-1 has deposed that after losing lob in January, 1975

Respondent indulged in the habit of drinking wine with his friends.

Though Respondent was employed with M/s. Akshay Industries in

November, 1975 his drinking habits increased and Respondent even

sold household articles to buy liquor for himself. Respondent was

again unemployed and appellant had to take a part time job in 1982

with Delhi Art Theater leaving her child in the custody of her

parents. She has deposed that instead of improving his behaviour

Respondent started consuming more liquor and torturing her

mentally as well as physically by giving her beatings. He would

take money from her for his drink and also forced her to get money

from her parents. Respondent with a view to purchase drinks also

took loan and started selling household articles. She has deposed

that whenever she resisted the demand of Respondent for money, she

was given beatings. Because of the beatings she suffered mental

pain as well as physical torture. She has deposed on oath that

because of excessive drinking Respondent started coming late at

home and she and the Respondent seized to have any physical

relationship with each other.

12. Petitioner in her statement has narrated the instance of May, 1989

stating that, Respondent returned home late at night in drunken

condition and for no rhyme or reason gave her physical beatings,

pulled her hair, sat on her, abused her, spit and vomited on her in the

absence of her child who had gone to school trip. She has stated that

Respondent quarreled with her throughout the night with the result,

she had to leave house in the morning and take refuge in her parents‟

house. There is no effective cross examination of the appellant and

Respondent as RW-1 has not specifically refuted the act of cruelty

committed by him on the Petitioner in May, 1989.

13. The other incident she has narrated is of 2.12.1989, when under the

guidance of „Shaheli‟, a voluntary women organization, she had

started living with the Respondent and the child from 20.09.1989.

She has testified that on that date Respondent returned home at

about 11:00 P.M. in drunken condition and started abusing her for no

reason. When he did not cool down, she asked him as to why he was

abusive, on which Respondent picked up utensils and threw them

upon her and he also picked up a knife from the kitchen and

threatened her of life. To save herself, she went to the room and her

son, who had intervened between her and the Respondent was also

threatened and was injured by him with a knife on his left eye.

14. In between 20.09.1989 to 2.12.1989, as per her statement, parties

continued to fight and Respondent continued to come home late at

night in drunken condition. He showed his dis-interest towards the

Petitioner as well as the child.

15. There is no cross examination of the appellant about the behaviour of

the Respondent towards the appellant after their re-union on

20.09.1989. It is not disputed that the parties had reconciled with

the assistance of voluntary organization „Saheli‟, and a document

Ex.PW-1/1 dated 5.08.1989 (copy of the same Ex. RW-2/1) was

executed. However, this document in no manner suggests that

parties had reconciled their dispute. Rather it suggests separation

and divorce by mutual consent. It seems that after execution of this

document parties continued to visit „Saheli‟, on its calls and

consequently decided to live together. This is reflected from the

letter dated 20.09.1989 Ex.PW-1/17, written by the Respondent to

Saheli, acknowledging their advice and assistance in solving their

problem and helping them to re-unite. However, there is no

evidence produced by the Respondent on record to suggest that he

had improved upon his behaviour towards the Petitioner.

16. It has come in evidence that after marriage parties started living in a

rented house at Chitranjan Park. At that time, Respondent was

employed with M/s. Office Equipments and he lost his job in

January, 1975. Petitioner took up job in September, 1975 with M/s.

K.G.Khosla Compressor at Faridabad. Respondent had taken a job

with M/s. Akshay Industries in 1975 and thereafter her parents dis-

continued the financial support. She has deposed that the rented

accommodation had to be vacated on 31.12.1982 because

Respondent did not pay the rent of the premises and suffered eviction

order and she was forced to take shelter in her parents‟ house along

with Respondent and the child. She has denied the suggestion that

the tenanted premises were vacated for bonafide requirement of the

landlord. Respondent has a grouse that they were provided garage

accommodation by appellant‟s parents and not in the house.

Certified copy of the eviction order has not been placed and proved

on record by the Respondent to demolish the statement of the

appellant that they had to vacate the rented premises at Chitranjan

Park for non payment of rent. Respondent has not placed on record

any document to indicate that he was employed and therefore there

was no occasion for him to demand any money from his wife, the

appellant or his in-laws to meet his demands. Since Petitioner

categorically deposed that Respondent was unemployed for most of

the time, it was for him to demolish her evidence by producing

relevant evidence on record, documentary or otherwise, to indicate

his financial status. Pass Book Ex.PW-1/R-3 pertains to the year

1985 till January, 1991. Debit entries in the account book basically

relate to the school fees which might have been paid by the

Respondent. To this also the explanation has been given by the

Petitioner that, since school fees account was opened under the

guardianship of father, she had been financing the Respondent to pay

school fees of the child from the said account.

17. To a suggestion put to her in the cross examination she has deposed

that „It is correct that my husband has been resorting to physical

injuries to me right from the marriage. I got married in the year,

1974. I tolerated the illtreatment of the respondent till, 1989 in the

hope that the behaviour of the respondent might improve. It is

correct that the influence of the father/respondent on the child was

not congenial‟.

18. It is pertinent that the testimony of the Petitioner that Respondent is

addicted to heavy drinking and has been giving physical beatings and

causing mental torture to her in drunken condition remained

uncontroverted as she has not been cross examined on this aspect

except that, when asked, she has replied that her husband was

addicted to alcohol right from the marriage.

19. True that Respondent in his statement has denied that every day he

indulged in excessive drinking, but then his vague denial in the

absence of any cross examination of the Petitioner would not in any

manner prove that Respondent was not alcoholic or that under the

influence of liquor he did not torture his wife physically or mentally.

20. The Trial Court while considering the oral evidence of the parties

observed:-

"34. As regards the grounds of cruelty which are based mainly on the drinking habits of the respondent and on the basis of fact that respondent was unemployed for a considerable period and that the respondent had always been asking the Petitioner to bring money from her parents, all these do not stand proved as I have already observed above."

"35. As regards the allegations about drinking habit of the respondent, there is no concrete evidence except the oral testimony of both the parties. The petitioner/wife has levelled allegations that the respondent/ husband was a regular drunker and the respondent/ husband has denied the same. Since no particular incident of drinking has been proved on record, whereby respondent had taken excessive drinking and then under the influence of liquor

he had caused any cruelty upon the petitioner or had treated the petitioner with any cruelty. So I find that general allegations regarding drinking can not be termed as cruelty of such a nature which may amount of matrimonial offence of cruelty for the purposes of dissolution of marriage."

21. The fact findings of the Court are not born out of the record.

Incidents of cruelty have been specifically testified by the Petitioner

as PW-1. Such as incidents of May, 1989 and 2.12.1989. These

allegations cannot in any manner be considered as general in nature.

It is proved in evidence of the Petitioner that Respondent used to

physically and mentally torture her for bringing money from her

parents for fulfillment of his requirement of liquor.

22. To my mind, the Trial Court also did not properly appreciate the

allegations of unemployment and torture for money as proved by the

appellant in her testimony, while observing:-

"30. ......will go to show that the respondent had at least not lost his job and that is why after vacating one rental accommodation at Inderpuri, he took up another rental accommodation in Chitranjan Park. Though he had denied that he started indulging in drinking liquor daily and he has not at all admitted fact of taking drinks, yet assuming for the sake of arguments that at times the respondent had been taking drinks but that factor alone will not be

sufficient to say that the petitioner was being treated with cruelty by the respondent unless the said drinking habit of the respondent is coupled with the overt act of creating scenes or giving beatings to the petitioner....... that there is no document on record to suggest that there was any dispute between the parties either over drinking habit of the respondent or the respondent not taking interest in the family affairs or not supporting the family financially."

"32. ..... that none of the parties has summoned any record from M/s Akshay Industries or from M/s Greaves Cotton Industries to show that the respondent was not working anywhere after Nov., 82 and was unemployed for some period. Since the allegation of unemployment of respondent are by the petitioner so the onus to prove the same was on petitioner. She should have shown the records and prove that respondent was unemployed.

33........ So there is a presumption that the petitioner might have taken up a part time job with Delhi Art Theatre on account of her interest in that field...... But that does not show that she was compelled to take part time job because of financial crisis as the petitioner has not proved on record to show that during the year 1982 when she took up part time job respondent was out of job and there was no other source of income to properly maintain the family."

23. The Trial Court went wrong in observing that after vacating the

rented accommodation at Inderpuri, he took up another rented

accommodation at Chitranjan Park because, soon after the marriage

parties first lived at Inder Puri with the parents of the Respondent for

a very short period and thereafter they took rented accommodation at

Chitranjan Park, where they continued to reside till the eviction order

was passed against the Respondent in 1982 and therefore the Trial

Court was not right in its approach to discard the testimony of the

appellant that Respondent was unemployed when it observed that

Respondent had not lost his job and that is why after vacating the

rented accommodation at Inder Puri, took another accommodation at

Chitranjan Park. Analysis of evidence by the Trial Court is

therefore, erroneous and has to be brushed aside.

24. There cannot be any direct, oral or documentary evidence except the

testimony of the Petitioner and the circumstantial evidence to prove

that there was dispute between the parties either for drinking habit of

the Respondent or for Respondent not taking any interest in the

family affairs or for not supporting the family financially. Financial

status of the Respondent, indicated in his pass book, has already been

discussed above. Needless to say, Respondent has not controverted

the statement of the Petitioner that he was unemployed or that he was

not supporting her financially. Rather, he tortured her physically and

mentally to take money from her and her parents to meet his need for

liquor. In his cross examination he admitted that he had no

documentary proof to show that he was in employment and was

getting salary and was financially sound to meet his requirements

and that of his wife and child.

25. Respondent in his cross examination did admit that a complaint was

made by the appellant with a voluntary organization „Saheli‟, where

he was called number of times for reconciliation. He also admitted

that a complaint was lodged by his wife with CAW Cell which

remained alive during the period from 20.09.1989 to 2.12.1989 when

parties were living together. This suggests that they started living

together on a trial basis to understand each other better but,

unfortunately, they again fell out as Respondent did not improve his

behaviour. Admittedly, Petitioner has been financially independent

throughout as she remained in employment and also worked in the

theater on part time employment after her office hours. If the

Respondent was financially sound, there was no need for the

Petitioner to take up a part time job in the evening after coming

home from the office at the cost of neglecting her house and the child

who admittedly was being taken care of by her parents in her

absence.

26. In her complaint dated 3.12.1989 Ex.PW-1/3, made at Police Station

Mayur Vihar, Petitioner has specifically levelled allegations against

the Respondent that on 2.12.1989 he came home at about 11:00 P.M.

Under the influence of liquor he picked up a quarrel with her.

Similar were her allegations in her complaint Ex.PW-1/5 made on

the same day to SHO, Police Station Trilok Puri. It is not in dispute

that Respondent was called by the SHO of the concerned Police

Station for interrogation.

27. There is a letter written by the Respondent on 11.09.1989 Ex.PW-

1/19 on the record. Few lines of the said letter being relevant are

reproduced below:-

"... Far from giving proper return for this love. I have behaved in a very cruel manner to you from all angles, mental, physical, financial and social...."

"... Far from being greatful to you for this, I have beaten you, I have tortured you a lot, and I confess this thousand times. I give you words that I will work hard to keep your happiness intact...."

"Save me from the grip of vice, and allow me to do penance for all my sins....."

28. Thus, there is clear admission on the part of the Respondent made to

the appellant in this letter that he had been torturing her mentally,

physically, financially and socially. He was not providing any

finance to the appellant, rather forced her to part with money to meet

his demands for liquor. This also indicates that Respondent was not

financially independent; being jobless as alleged by the Petitioner.

When he has referred to a „vice‟, and sought forgiveness from the

Petitioner, he referred to no other vice but his addiction to liquor. It

was because of excessive drinking, he physically and mentally

tortured her, did not take any interest in the family, did not care for

her and the child.

29. This letter was written by the Respondent just nine days before he

joined the company of the Petitioner in September 1989 and re-

started living with her. However, despite all the assurances and

undertakings given by him in this letter, he completely failed to

honour them. The Trial Court has failed to appreciate the

documentary evidence as discussed above and erroneously observed

that there was no direct evidence produced on record for the alleged

mis-conduct and ill-behaviour of the Respondent with the Petitioner.

30. Another instance of grave mental cruelty is when in 1981 Petitioner

conceived for the second time, she suffered physical as well as

mental torture at the hands of the Respondent because he suspected

her fidelity and she had to get medical termination of the pregnancy

done.

31. The Trial Court committed error when it observed that Petitioner

could not have continued to live with the Respondent after

termination of the pregnancy on the alleged ground of suspected

fidelity but she did not do so and continued to live with the

Respondent indicating that no such cruelty was committed by the

Respondent and that the statement of the Petitioner was not

believable.

32. Respondent has not disputed that in 1981 Petitioner had conceived

second time and also that she had to undergo medical termination of

pregnancy. There is no cross examination of the Petitioner on this

aspect of the matter, nor Respondent has stated anything in his

statement as RW-1 indicating the reasons which might have forced

the Petitioner to get here pregnancy terminated.

33. Therefore, I find no reason to disbelieve the testimony of the

Petitioner that she had to undergo termination of pregnancy because

of the Respondent‟s suspicion on her fidelity, and he accused that the

child was not his and disowned him. Nothing can be more cruel to a

woman, rather a mother, than such accusation on her character and

also the father disowning the child.

34. Rift between the parties widened further when Petitioner was allotted

a flat by the DDA. It has come in evidence that Respondent

pressurized, abused, harassed and ill-treated the Petitioner for selling

the allotment documents to which Petitioner never agreed. To

pressurize her, Respondent gave her physical beatings and mentally

tortured her. It has also come in her statement, which has remained

uncontroverted on record that, Respondent never provided any

financial assistance to her for purchase of the flat. It is not the case

of the Respondent in his testimony that he had financially supported

his wife to pay the purchase price of the said flat to DDA. It is an

admitted case of the parties that Respondent had filed a civil suit

seeking half share in the said flat but he lost the case. His challenge

to the judgment and decree of the trial court in appeal also failed. It

is obvious that Respondent pressurized appellant to sell the allotment

of the flat with a view to have easy access to finances which would

have come in the hands of the Petitioner on sale of the flat. It is

pertinent that even before this Court, Respondent made a statement

that he was ready and willing to divorce his wife by mutual consent

provided, he was given half share in the flat, being co-owner. When

Petitioner produced the original Conveyance Deed dated 28.12.2005

on the desire of the Respondent, he absented himself knowing it well

that the flat was owned by the Petitioner and he has no share in the

same. A copy of the Conveyance Deed has been placed on record by

her to prove that the said flat is allotted to her in her individual name

and not jointly with the Respondent. A person, who remained almost

unemployed during his stay with his wife, started spending money on

liquor, indiscriminately, came home late at night, gave physical

beatings as well as mentally tortured her and least of all demanded

share in her flat, cannot claim that he was not „CRUEL‟ to his wife.

Petitioner has been running her household and bringing up the child

single handedly, with no support from her husband. Behaviour of

the Respondent over the years can only be termed as „CRUEL‟.

35. The worst incident of cruelty, as proved on record, is of the night of

2.12.1989. It is proved in evidence from the testimony of the RW1,

which finds corroboration from consequent FIRs/police complaints

made by the Petitioner at Police Station, Trilok Puri and Mayur

Vihar, that on the fateful night Respondent came heavily drunken

and for no rhyme or reason picked up quarrel with her, gave her

beatings, abused her, picked up utensils and threw them on her,

picked up a knife and threatened her of life. When suddenly her son

intervened to save her from his anger and threat under the influence

of liquor and when he tried to inflict injuries on her, he got injuries

on his left eye. He was taken to SDN hospital where he was

provided with proper medical assistance. MLC Ex. PW-1/2 was

prepared by the concerned doctor of the hospital. As per this MLC

history of the patient as recorded is "being beaten by blunt weapon

q/e and left eye congested". Respondent in his cross examination

could not explain as to how his son got injuries on his left eye. He

has deposed that he had no idea if on the fateful night of 2.12.1989

his son suffered injuries on his left eye. He also had no idea if his

son was injured when he made attempt to save his mother during his

fight with the Petitioner. According to him, he came to know that

his child was provided medical aid only after coming to the Court.

He admitted that neighbours did come on account of commotion

after hearing the loud voice and shouting of his wife. He did admit

that on 3.12.1989 in the morning, parents of the appellant and

volunteers from „Saheli‟, came to his house.

36. Thus, it is clear from the answers given by the Respondent in his

cross examination that, he could not recollect the incident of

2.12.1989, obviously he was under the influence of liquor when he

physically beat his wife, threw utensils on her and tried to cause

injuries with a knife. To save herself, Petitioner had to lock herself

in the room. To save his mother when the child intervened, he also

received injuries on his left eye.

37. The word „cruelty‟ finds no definition in the Act. Therefore, the

word „cruelty‟ used in Section 13 (1) (ia) of the Act is in the context

of human conduct and behaviour in relation to and in respect of

matrimonial duties or obligations. It is a course or conduct of one

spouse which adversely affects the other spouse. Cruelty can be

mental or physical, intentional or unintentional. While judging the

physical cruelty, Court has to judge the degree of such physical

torture and if it is mental, the enquiry is required to the nature of

cruel treatment and then as to the impact of such treatment on the

mind of the other spouse.

38. The ingredients of cruelty as required to be proved on record by the

Petitioner are based on delicate personal relationship of husband and

wife. Court, therefore, has to see the probabilities in a given case to

find out the legal cruelty, not merely as a matter of fact, but as to the

effect on the mind of the Petitioner spouse because of the acts or

omission of the other. This cruelty besides physical, mental can also

be corporeal.

39. 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. Court dealing with the petition filed for

divorce on the ground of cruelty has to keep 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 such conduct can be called cruelty, it must touch a certain

pitch of severity.

40. Petty quibbles, trifling differences should not be exaggerated and

magnified to destroy a marriage. Foundation of marriage is

tolerance, adjustment and respect towards one another. Therefore,

inherently tolerance of each other‟s fault to a certain bearable extent

has to be kept in mind before considering a particular conduct of a

spouse towards the other as tantamounting to „cruelty‟. The Court

has to consider the mental and physical conditions of the parties,

their characters and social status and therefore, the incidents which

can be termed as „cruelty‟ have to be adjudged in a case on the facts

and circumstances and the evidence adduced on record. It is not

required that physical violence as well as mental torture are essential

to constitute cruelty. Even conduct inflicting a miserable mental

agony and torture under the given circumstances may constitute

cruelty within the meaning of Section 13(1) (ia) of the Act.

41. In case of physical cruelty, the Court generally gets direct evidence

but in case of mental cruelty, the Court has to first make an inquiry

to the nature of cruel treatment, the impact of such treatment in the

mind of the spouse if it caused reasonable apprehension that it can be

harmful or dangerous to live with the other. It is not necessary for

the party to narrate each incident against the other spouse to

constitute such conducts as cruelty. Sometimes two or three

incidents may be sufficient to prove the cruelty committed on the

petitioner by the other spouse. Many a times mental cruelty is more

severe than the physical cruelty.

42. In 'Samar Ghosh Vs. Jaya Ghosh' (2007) 4 SCC 51, the Supreme

Court has enumerated some instances of human behaviour which

may be relevant in dealing with the cases of mental cruelty. They

are:

" (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of

deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her

husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."

43. Evidently mental cruelty cannot be comprehensively defined, within

which all kinds of cases of mental cruelty can be covered. Human

mind is extremely complex and human behaviour is equally

complicated. Similarly human ingenuity has no bound and

therefore, to assimilate the entire human behaviour in one definition

is almost impossible. What may amount to cruelty in one case may

not amount to cruelty in the other case because, concept of cruelty

differ from person to person depending upon his/her upbringing,

level of sensitivity, educational, family and cultural background,

financial position, social status, customs, traditions, religious beliefs,

human values and their value system. The concept of mental cruelty

has changed with the passage of time; because of impact of modern

culture through various medias electronic and print and other value

system. Therefore, there cannot be any straight jacket formula or

fixed parameters for determining the mental cruelty in matrimonial

matters. No uniform standard, therefore, can be laid down for

guidance what may constitute mental cruelty in matrimonial

disputes.

44. Coming back to the facts and circumstances of this case, parties to

the petition were married in December, 1974. They continued to live

together for a period of fifteen years except a short separation from

May 1989 to September 1989. Petitioner has been tolerating the

physical torture as well as mental agony at the hands of the

Respondent for the said period. She continued to live with the

Respondent despite the fact that he suspected her fidelity when she

conceived for the second time in 1981. She must have suffered

grave mental pain and agony when she had to go for medical

termination of pregnancy. Respondent was never financially stable

and sound. Petitioner had been working since after her marriage and

looking after the financial needs of the family including that of the

Respondent. It is not disputed that parties had to vacate the rented

accommodation in Chitranjan Park because of the eviction order,

which Respondent suffered. Respondent did not make any

arrangement for another rented accommodation. Rather he shifted

with the Petitioner in the house of her parents, where she continued

to live in a garage for quite sometime. Respondent was in the habit

of taking liquor but, he became alcoholic over the period of time.

45. As discussed above, there is enough evidence to indicate that to meet

his demands for liquor, he physically and mentally tortured the

Petitioner. Some of the instances of physical and mental cruelty

proved on record are of 1981, May 1989 and of 2.12.1989. It is

significant that behaviour of the Respondent became more cruel

when he refused to contribute for the purchase of the flat allotted in

the name of the Petitioner by the DDA. Not only this, he wanted to

sell the allotment but, could not succeed as Petitioner remained firm

on her decision not to sell the allotment, for which she had to face

physical as well as mental cruelty at the hands of the Respondent.

The conduct of the Respondent in pressurizing the Petitioner to sell

the allotment is obvious from his various subsequent acts. He filed a

suit claiming half share in the property but he lost. He disputed the

absolute title of the Petitioner in the said property at Mayur Vihar.

Even in this appeal, he made it clear that he would divorce the

Petitioner only after he was given half share in the house. Under the

circumstances, to say that conduct of the Respondent towards the

Petitioner cannot be construed as cruelty within the meaning of

Section 13(1) (ia) of the Act would not be correct.

46. Parties to the appeal are artists. An artist by temperament is

emotional and sensitive. Behaviour of the Respondent towards the

Petitioner throughout fifteen years of their living together has been

unreasonable and torturous. His ill behaviour can be safely

construed as grave. He has been ill-treating the Petitioner. There is

evidence to indicate that there was cessation of sexual intercourse,

neglect of the Petitioner and the family, his indifference attitude

towards the family and his assertion that Petitioner is unchaste, are

factors which constitute mental or legal cruelty. Respondent, under

the influence of liquor seemed to be losing his temper to such an

extent that he would indulge into giving severe beatings, vomiting on

his wife, spitting on her. Once be picked up a knife and threatened

the Petitioner of life. In this fight, it was the innocent child, their

son, who received injuries on his left eye. What could be more then

what has been discussed above to construe legal cruelty?

Respondent though had been assuring the Petitioner of reformation,

neither his behaviour nor his conduct improved. Rather his

behaviour and indifference to the Petitioner and the family increased.

It was when Petitioner could not bear the Respondent any further that

she left the house in May 1989 and went to her parents. She tried to

readjust with the Respondent with the assistance of women

organization „Saheli‟. Again Respondent did not try to improve

himself in any manner. His need for finances was another reason for

his torturous conduct towards the Petitioner. Petitioner, therefore,

suffered physical as well as mental cruelty and it could not be

expected that they could live together after the incident of 2.12.1989.

47. Since after December 1989, parties are living separately. Son is now

about 31 years of age and settled in life. Parties are living separately

for about 21 years. The matrimonial bond between the parties has,

therefore, been ruptured beyond repair because of mental and

physical cruelty caused by the Respondent. After separation, the

parties did not have any interaction with each other. Rather they

have been litigating, may be in a Civil Court of law. I find on record

a complaint dated 5th February, 1989 Ex. PW-1/15, disclosing the

behaviour of the Respondent of 4.02.1989. Respondent has admitted

that he has not met his child since after 2.12.1989.

48. Trial Court did not properly appreciate the uncontroverted statement

of the Petitioner when it observed that the allegations of beatings,

mental torture, pain and agony suffered by the Petitioner were quite

general in nature and that the ground of cruelty as pleaded by the

Petitioner did not prove the extent that she was being treated by the

Respondent with such cruelty, which may amount to matrimonial

events of cruelty under Section 13(1) (ia) of the Act. The

appreciation of evidence by the Trial Court is not in the correct

perspective on facts and circumstances of the case and evidence

adduced on record. Uncontroverted evidence of the Petitioner has

proved physical as well as mental cruelty and every incident of such

cruel behaviour of the Respondent clearly established that

Respondent treated her with legal cruelty.

49. Hence, the findings of the Trial Court on this issue are set aside and

it is decided in favour of the Petitioner.

50. On 3rd December, 1989 when Respondent left the house he was

residing in Mayur Vihar i.e. the flat owned by the Petitioner. This

happened because of a quarrel having taken place between the

parties on the intervening night of 2nd/3rd December, 1989. Parties

continued to fight the whole night. Respondent was violent and

abusive towards the Petitioner in so much so that he even inflicted

injury to his son. It was under these circumstances that he left the

house in the morning of 3rd December 1989 in the presence of

workers of women organization „Saheli‟ and parents of the

Petitioner.

51. There is no dispute that Respondent executed a document Ex. PW-

1/4 on 3rd December, 1989 in the presence of S.Vatsyayan, PW-2. In

this document, he has written that he was finally leaving the

premises No.57-D, Pocket-IV, Mayur Vihar, New Delhi of his own

with a pledge not to come back to the said premises and disturb the

Petitioner s in future for any reason whatsoever. It is submitted by

counsel for the Petitioner that Respondent deserted the Petitioner on

3.12.1989 of his own. I find no force in his submission. It is

significant to note that in the last few lines of this letter he has

written that he would not claim any rights or privileges in the said

flat. In return he wanted that Petitioner should not seek any

monetary assistance from him for the household from that date. It is

also recorded that parties had agreed to go in for mutual divorce of

marriage in a court of law within fifteen days from that date. Thus, it

is clear from this letter that Respondent had deserted the Petitioner

because of the incident of the night. It cannot be said that he was left

with no option but to leave the house.