Memwanti Tripathi vs Harish Narain Tripathi
2011 Latest Caselaw 3192 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment reserved on: 29.04.2011
                        Judgment delivered on:  .07.2011

                        FAO No. 305/1998

Hemwanti Tripathi                                ......Appellant
                              Through: Mr. G.S. Vasisht with
                                       Ms. Pratibha Shukla, Advs.

                        Vs.

Harish Narain Tripathi                      ......Respondent
                              Through: Mr. Pradeep Gupta with
                                       Mr. Suresh Bharti, Advs.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
     be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
     in the Digest?


KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 28 of the Hindu

Marriage Act, 1955 the appellant wife seeks to challenge the

impugned judgment and decree dated 13.7.1998 passed by the

learned ADJ whereby the divorce petition filed by the appellant

under Section 13(1)(ia) of the Hindu Marriage Act was dismissed.

2. Broad facts based on which the appellant herein

invoked the ground of cruelty and filed the petition for divorce

are that the marriage between the parties was solemnized

according to Hindu rites and ceremonies on 25.6.1980 at village

Chamaria, P.O. Kali Jagdishpur, Distt. Basti, U.P. and a daughter

„Anupam‟ was born out of the wedlock on 18.7.1982. The case of

the appellant is that the parties started living together in Delhi in

September, 1981 after "Gauna" ceremony was performed and

the marriage was consummated; the respondent changed his

behaviour shortly after the birth of the female child as he wanted

a son and started blaming the appellant for having given birth to

a female child and therefore respondent started harassing the

appellant on one pretext or the other and used to hurl filthily

abuses/insults on the appellant almost every day and he also

started beating the appellant mercilessly very frequently. It is

further the case of the appellant that the respondent started

beating the daughter as well. The appellant further alleged that

the respondent in the presence of the neighbours throws the

appellant on streets by pulling her hair, turns out the appellant

and the child and thereafter forces them to spend even the

nights by sleeping outside the house. It is further alleged by the

appellant that the position of the appellant is that of a prisoner

confined in the house and that she has been tolerating the

atrocities of the respondent in order to keep peace in their family

and to save her prestige. The appellant alleged that the

respondent stopped caring for the family and has been behaving

cruelly and he even tried to strangulate her as a result of which

on many occasions she became unconscious. It is further the

case of the appellant that the respondent openly threatens her

that he will not let her live peacefully, will spoil her figure and will

not give anything towards her expenses and that the appellant

cannot cause any harm to him. It is alleged by the appellant that

the respondent abuses the appellant and the child in filthy

language in the presence of his friends and that it has become

his daily routine and being fed up with the cruel behaviour of the

respondent, the appellant lodged a complaint in police station

Shakarpur, Delhi on 1.7.1996. It is further the case of the

appellant that the respondent expressed his unwillingness to

keep the appellant as his wife any more through the writing

dated 7.9.1994 and the appellant started living separately in a

rented accommodation along with her daughter and the

respondent kept on visiting the appellant claiming that the

appellant being his legally wedded wife he has every right to stay

with her and the respondent continued indulging in giving

beating to the appellant and the daughter. The appellant had

given the incident of cruelty dated 21.2.1996 during her stay at

E-671, Ganesh Nagar, Shakarupur, Delhi when the respondent

visited the house along with his two friends and insisted the

appellant to stay with him at F-51/782, Ganesh Nagar, Delhi and

on her refusal, the respondent got infuriated and gave her

beating and pulled her hair and forced the appellant and the child

to go and live with him. The appellant further alleged that on

23.4.1996 the respondent abused the appellant in the presence

of his friends and slapped her as a result of which she developed

pain in her chest and had high fever but the respondent did not

take her to any doctor and rather forced her to entertain his

guests and the appellant remained confined to bed for about a

week. The appellant further alleged that on 16.5.1996 the

respondent again gave beating to her and her daughter and

turned them out of his house No. F-51/782, Ganesh Nagar, Delhi

but with the intervention of the neighbours he permitted them to

enter the house. The appellant further alleged that the

respondent again gave merciless beating to her on 24.5.1996,

pulled her hair, gave her fist blows and also gave beating to her

with sticks and tried to strangulate her as a result of which she

became unconscious and again on 1.7.1996 the respondent

brought his friends and started abusing and beating the appellant

by pulling her hair without any provocation and turned her out,

and when the daughter of the parties who was aged about 14

years tried to intervene she was also beaten and turned out of

the matrimonial home and the respondent did not return to the

said premises thereafter. Thus due to the above enumerated

acts, the appellant filed the petition for divorce which vide

judgment and decree dated 13.7.98 was dismissed. Feeling

aggrieved with the same, the appellant has preferred the present

appeal.

3. The respondent on the other hand had taken a

preliminary objection that the petition is liable to be dismissed

under Order 7 Rule 11 CPC for want of cause of action. The

respondent denied each and every allegation of cruelty as

leveled by the appellant against him in her petition. The

respondent also submitted that the female child was born on

18.7.1982 and the allegation of torture and harassment on the

issue that she did not give birth to a male child by the respondent

is alleged to have taken place in 1994-95 and 1996 after a gap of

more than two years which itself is explanatory to prove the

falsity of the allegation. It is also submitted by the respondent

that in fact the appellant herself used to visit a „Sadhu‟ in

Hanuman Temple Shakarpur, Delhi and the respondent had

objected on her such visits but she disobeyed the respondent and

continued visiting the said „Sadhu" even against the desires and

objection raised by the respondent on the pretext that she will be

blessed with a son. It is submitted by the respondent that the

father of the appellant often used to raise hue and cry in the

house and used to allege false allegations against the

respondent. The respondent has further denied the execution of

the writing deed dated 7.9.1994 whereby he allegedly expressed

his willingness of not keeping the appellant with him. It is

submitted by the respondent that the appellant had leveled all

these allegations of cruelty because the respondent had tried to

restrain her from visiting the said „Sadhu" and all the allegations

of cruelty have been leveled by the appellant with ulterior

motives to create circumstances for filing the petition for divorce

on the ground of cruelty.

4. Based on the above pleadings of the parties, the

learned Trial Court framed the following issues:-

              "(i)   Whether the respondent            had     treated    the
                     petitioner with cruelty? OPP.
              (ii)   Relief."

5. To prove her case, the appellant appeared as her sole

witness while the respondent besides examining himself as RW 3

also produced his landlord Mr. Haridwar Yadav as RW2 and Head

Constable Om Prakash from P.S. Shakarupur as RW1 who proved

DD No. 8A dated 17-18/5/96.

6. Assailing the order of the learned Trial Court, Mr. G.S.

Vasisht, learned counsel appearing for the appellant submitted

that the respondent started physically beating the appellant

almost every day after the birth of female child in the family.

Counsel also submitted that the respondent himself had written a

hand note dated 7.9.1994 which was duly proved on record as

Exhibit PW 1/1 expressing his unwillingness to keep the appellant

as his wife. Counsel further submitted that the appellant had

given specific dates when she was beaten by the respondent and

also proved copy of the report lodged by the appellant with the

police station as Exhibit PW 1/2 thereby reporting the incident

which took place on 1st July, 1996. Counsel further submitted that

the learned Trial Court committed grave illegality in ignoring the

scandalous allegations leveled by the respondent in his written

statement as well as in his evidence attacking the moral

character of the appellant by attributing her relationship with one

Sadhu/Pujari. Counsel also submitted that the appellant was

forced to live separately after 1.6.1996 and thereafter the

respondent never bothered to contact the appellant and nor even

have paid any amount of maintenance. Counsel has also argued

that the marriage between the parties has turned totally dead

and nothing can be gained now by keeping such dead marriage

alive just on papers. In support of his arguments counsel for the

appellant placed reliance on the following judgments:-

1. Vijaykumar Ramchandra Bhate vs. Neela Vijay Kumar Bhate (2003) 6 SCC 334

2. Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558

3. Ashok Kumar vs. Santosh Sharma AIR 1987 Delhi 63

4. Savitri Balchandani vs. Mulchand Balchandani AIR 1987 Delhi 52

5. M.K Malhotra vs. Kirti Malhotra 1987(1) HLR 199

6. Ashok Kumar Arora vs. Smt. Prem Arora 1987(1) HLR 449

7. Opposing the present appeal, Mr. Pradeep Gupta,

learned counsel appearing for the respondent supported the

impugned judgment dated 13.7.1998 passed by the learned Trial

Court. Counsel submitted that the learned Trial Court has given

valid reasons for dismissing the petition filed by the appellant and

there is no illegality or perversity in the said judgment passed by

the Trial Court. Counsel also submitted that the appellant had

already condoned the alleged acts of cruelty by continuing to

stay with the respondent and, therefore, the learned Trial Court

had rightly declined the relief to the appellant.

8. I have heard learned counsel for the parties at

considerable length.

9. The expression „cruelty‟ has not been defined in the

Hindu Marriage Act and rightly so as it is not possible to put down

the concept in a strait jacket formula, but since the ground of

cruelty as envisaged under Section 13 (1) (ia) of the said Act has

been the subject matter of discussion before various High Courts

and the Hon‟ble Supreme Court, therefore, the concept of cruelty

has received interpretation in somewhat broad terms. In the

celebrated judgment of Dr. N.G. Dastane vs Mrs. S. Dastane

AIR 1975 SC 1534 the Hon‟ble Supreme Court observed that

normally the burden to prove the allegations of cruelty leveled by

the petitioner lies on him/her and that the standard of proof

required in a matrimonial petition under the Act is not to

establish the charge of cruelty beyond reasonable doubt but

merely by weighing the various probabilities to find out whether

the preponderance is in favour of the existence of the facts

alleged. It has also been pointed out that unlike the requirement

under English law which must be of such a character as to cause

danger to life, limb or health so as to give rise to a reasonable

apprehension of such a danger, the court under the Act in

question has to only see whether the petitioner proved that the

respondent has treated the petitioner with such cruelty as to

cause a reasonable apprehension in mind that it will be harmful

or injurious to live together, keeping into consideration the

resultant possibilities of harm or injury to health, reputation, the

working career or the like.

10. In a subsequent judgment of V. Bhagat vs. D.

Bhagat AIR 1994 SC 710 the Hon‟ble Supreme Court observed

that 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 and the parties cannot reasonably also be

expected to live together or that the wronged party cannot

reasonably be asked to put up with such conduct and continue to

live with the other party. It was also considered to be not

necessary to prove that the mental cruelty is such as to cause

injury to the health of the wronged party. In another landmark

judgment of Naveen Kohli vs. Neelu Kohli AIR 2006 SC

1675 the Hon‟ble Supreme Court held that 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

Hon‟ble Supreme Court viewed. The relevant paras of the said

judgment are reproduced as under:-

"56. 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.

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

58. 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."

11. In Samar Ghosh vs Jaya Ghosh reported in (2007)

4 SCC 511 the Hon‟ble Supreme Court has given a treatise on

the subject, examining the amplitude of cruelty in different

countries and gauging their judicial trends, the Apex Court also

laid down broad parameters which may be relevant in dealing

with the case of mental cruelty and the illustrative instances that

may constitute mental cruelty as narrated in the said judgment

are as under:-

"74. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(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 behavior 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 behavior 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."

The above instances not being exhaustive, give an idea that the

conduct complained of should be such that it is not possible for

the parties to live together anymore. Cruelty can be intentional

and unintentional; physical and mental. The conduct complained

of in the present case being physical and mental cruelty, the

appellant had to establish the allegations so that the Court comes

to the conclusion that there is pain and mental agony if the

parties continue to live together.

12. In the recent case of Gurbux Singh vs Harminder

Kaur AIR 2011 SC 114 the Hon‟ble Supreme Court held that

the married life should be assessed as a whole and few isolated

instances over certain period will not amount to cruelty. The

Supreme Court further observed that 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, one party finds it extremely difficult to live with the

other party no longer may amount to mental cruelty. Relevant

para of the said judgment is also referred as under:-

"12. The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty."

Hence, the complained behaviour should be persistent and

recurring over a length of time and it should be evident that the

relationship between the parties has deteriorated to such an

extent that it is not possible for them to live together without

suffering and mental pain.

13. Cruelty is the very antithesis of love and affection and

what may be a cruelty in one case may not be treated as an act

of cruelty in another case. Much depends on the social, economic

and educational background of both the parties and also on the

level of their tolerance. If observed, one would find ego based

fights more amongst educated and urban families and less in

poor and illiterate strata of the society whereas in latter category,

economical factors may be mainly responsible to cause marital

discord. However, irrespective of the social, educational and

economic background of parties, none would tolerate an attack

on their chastity or moral character. In the facts of the present

case, the respondent in his written statement as well as in his

evidence has attacked the chastity of the appellant by attributing

her relationship with one Sadhu/Pujari. The respondent has gone

to the extent of saying that the appellant had been spending the

night outside, alleging that the appellant had filed the said

divorce petition so that she could freely live with that Sadhu in

future. In para 3 of written statement on merits the respondent

clearly stated that it was quite surprising that on one hand the

petitioner (appellant) has been spending the night outside the

house on the other hand she has alleged that she was like a

prisoner in the matrimonial home. On merits, the respondent

averred that he objected to the appellant visiting that Sadhu, but

the petitioner did not mend her ways and continued to visit him

and sometimes she remained absent from the matrimonial home

in the night even. The respondent has also not disputed his

writing on Exhibit PW 1/1 wherein he acknowledged having

severed his relationship with the appellant. The respondent has

further not disputed the lodging of the complaint by the appellant

on 1.7.1996, which was proved on record as Exhibit PW 1/2. The

Hon‟ble Supreme Court in the case of Vijay Kumar

Ramchandra Bhate vs Neela Vijay Kumar Bhate (2003) 6

SCC 334 authoritatively held that allegations against wife of

unchastity, indecent familiarity with another person and

extramarital relationship made in written statement filed by

husband in proceedings under Section 13(1)(ia) Hindu Marriage

Act initiated by wife seeking dissolution of marriage, all such

allegations forming part of examination-in-chief or by way of

cross-examination constituted cruelty. Relevant paras of the said

judgment are reproduced as under:-

"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and

cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.

.................

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

continued on record at any rate till 5.10.1988 and the indelible impact and scar it initially should have created, cannot be said to have got ipso facto dissolved, with the amendments ordered. Therefore, no exception could be taken to the courts below placing reliance on the said conduct of the appellant, in this regard, to record a finding against him."

14. In the facts of the present case also despite the fact

that the physical beating given by the respondent on many

occasions by itself constitutes cruelty, but the scandalous

allegations leveled by the respondent attacking the moral

character of the appellant or attributing her relationship with

some Sadhu certainly amounts to worse form of cruelty in the

absence of any corroboration to such allegations. That the ratio

of Ashok Kumar vs.Santosh Sharma(supra) and Savitri

Balchndani(supra) wherein it was held that a decree of divorce on

the ground of cruelty can be passed on the strength of false,

baseless, scandalous and malicious allegations in the written

statement by one party on the other is thus found applicable to

the facts of the present case because in the case at hand the

husband has not led any evidence in support of his allegations.

What surprises this Court the most is that despite the fact that

the Trial Court gave the entire findings in favour of the appellant

but still passed the judgment against the appellant merely on the

ground that the acts alleged by the petitioner against the

respondent at best can be termed as wear and tear of daily life

and does not amount to cruelty. The learned Trial Court further

held against the appellant because she failed to produce any

close relative including her uncle who was living in

neighbourhood to prove the instance of beatings given by the

respondent on various dates. This Court fails to comprehend as to

how such a view could be taken by the learned Trial Court as

clearly serious and malicious allegations of the appellant having

relationship with one Sadhu and her staying out of the house

during nights also leveled by the respondent and as per the

settled legal position, casting such aspersions on the character of

the other spouse has the affect of causing deleterious affect on

the mind of such spouse and the same is a worse form of cruelty.

It has not been denied by the respondent that no evidence was

led by him to prove that the appellant used to go out during night

to stay with that Sadhu. The respondent has also not given any

reasons in the Ex. PW 1/1 to severe his relationship with the

appellant.

15. In the light of the aforesaid discussion, this Court does

not find any rationale or justification given by the learned Trial

Court in its conclusion to dismiss the divorce petition filed by the

appellant. The reasoning given by the learned Trial Court is

perverse and illegal on the very face of it and, therefore, the

impugned judgment and decree dated 13.7.1998 is accordingly

set aside. The appellant thus succeeds in the present appeal and

the marriage between the parties is dissolved on the ground of

cruelty as envisaged under Section 13(1)(ia) of the Hindu

Marriage Act. The decree sheet be drawn up accordingly.

July   , 2011                                KAILASH GAMBHIR, J