Dr.Anshuman Bhatt vs Smt.Mithlesh
2011 Latest Caselaw 1267 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        MAT.APP. NO. 112/2009


%                           Judgment delivered on: 03.03.2011

Dr. Anshuman Bhatt                              ...... Appellant

                     Through: Mr. Narender Mukhi, Advocate.


                            versus


Smt. Mithlesh                                   ..... Respondent

                     Through:    Mr. Rajeev Shukla, Advocate


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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

KAILASH GAMBHIR, J. Oral

*

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

marriage Act, the appellant seeks to set aside the judgment

and decree dated 16.7.2009 passed by the learned trial court

whereby the petition filed by the appellant under section 10 of

the Hindu Marriage Act, 1955 was dismissed.

2. Brief facts of the case relevant for deciding the

present appeal are that the parties got married on 20.10.2001

at Delhi according to Hindu rights and ceremonies. It is

alleged by the appellant husband that the behaviour of the

respondent wife was not cordial right from the very inception

of marriage and consequently he filed a petition for judicial

separation under section 10 of the Hindu Marriage Act, 1955

on the ground of cruelty which vide judgment and decree

dated 16.7.2009 was dismissed. Feeling aggrieved with the

same, the appellant has preferred the present appeal.

3. Assailing the order of the learned trial court,

counsel for the appellant submits that the learned trial court

has failed to take into consideration that 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 13(1)(ia) of the Hindu Marriage Act. Citing the

instances of cruelty committed by the respondent qua the

appellant, counsel pointed out that the respondent right from

the inception of her marriage started insisting the appellant to

live separately from his parents. Counsel also submitted that

the respondent used to disrespect and humiliate not only the

appellant, but his old parents as well. Some of the incidents

cited by the counsel for the appeallnt are:

 On 2nd January, 2002 at about 9.30 a.m. the respondent

shouted at the mother of the appellant when she had

entered in the kitchen without there being any rhyme or

reason.

 On 21st January, 2002 at about 8.00 p.m. the respondent

shouted at the parents of the appellant and said that all

the time they are sitting at home why they do not even

go to their native place.

 On 26.1.2002 at about 7.00 p.m. the respondent threw a

glass of water on the face of the appellant when he just

asked her to provide him the dinner.

 On 10th March, 2002 the respondent again scolded the

parents of the appellant with the remarks that they

always keep watching TV and they do not take recourse

to the path of religion.

 On 21.4.2002 at about 7.30 p.m. the father and brother

of the respondent came to the matrimonial home of the

respondent and started shouting at the parents of the

appellant on the instigation of the respondent.

4. Counsel further submitted that to save the matrimonial

home the appellant took a rented accommodation in Netaji

Nagar and where they had shifted on 18th May, 2002. The

respondent further submitted that at about 11.00 p.m. the

respondent compelled the appellant to go to the office of the

CPWD to lodge a complaint as the said rented premises

required immediate repair work and on refusal of the

appellant the respondent started insulting the appellant.

Counsel further submitted that on 19th May, 2002 the

respondent called her parents and told that it was not possible

for her to live any more with the appellant. Counsel for the

appellant further submitted that the appellant had arranged

another accommodation on rent i.e. house bearing No. 29/B

(III floor) behind temple, Ber Sarai, New Delhi, but the

respondent flatly refused to join the appellant at the said

accommodation and put a condition that the appellant should

ask his parents to vacate the Munirka flat.

5. Based on the aforesaid allegations and cruel acts

committed by the respondent towards the appellant and his

family members, counsel for the appellant submits that the

appellant was entitled to the decree of judicial separation.

6. The said allegations leveled by the appellant have

been totally denied by the respondent. Counsel appearing for

the respondent submits that it was the appellant who used to

misbehave and harass the respondent and at times also use to

give merciless beatings to the respondent without any

provocation from the side of the respondent. Counsel also

submitted that the appellant and his family members used to

taunt the respondent for not bringing sufficient dowry and

also demanded more money from the parents of the

respondent. The respondent also denied happening of any

incident on 2nd January, 2002 as at the alleged time she was in

her office. The respondent also denied the other instances

which were alleged by the appellant to attribute cruelty on the

part of the respondent. Counsel thus submitted that the

respondent always gave full love and respect not only to the

appellant but to his parents as well.

7. I have heard learned counsel for the parties at

considerable length and gone through the records.

8. The appellant has claimed the decree for judicial

separation based on the above allegations leveled by him

against the respondent. In support of his case the appellant

gave his own evidence as PW 1 while the respondent examined

herself as RW 1. Both the parties did not choose to lead any

other evidence to corroborate their side of the story. Besides

adducing oral evidence, the respondent has also placed on

record some documentary evidence to prove the fact that she

was having cordial relationship with the appellant and also

some of the complaints filed by her with various authorities.

The learned trial court after referring to some of the

judgments of the Supreme Court came to the conclusion that

the allegations leveled by the appellant are only trivialities of

the life and they can be termed as only wear and tear of the

marital life and are not so grave which could raise

apprehension in the mind of the appellant that it would be

harmful and injurious to live with the respondent.

9. Cruelty has not been defined in the Hindu Marriage

Act, and rightly so as it varies from case to case. What may be

cruelty in one case may not be cruelty in the other. The

concept of cruelty is of wide amplitude and cannot be put into

a strait jacket formula. It may be intentional or unintentional,

physical or mental. However the Apex Court through a catena

of judgments has developed the benchmark for judging the

cruelty. The conscience of the court has to be satisfied that the

conduct complained of is grave and weighty to come to the

conclusion that the petitioner spouse cannot be reasonably

expected to live with the other. The relationship between the

parties should have deteriorated to such an extent that it

becomes difficult for the petitioner spouse to live with the

other without mental pain agony and stress. The Hon'ble Apex

Court in the case of Samar Ghosh vs. Jaya Ghosh (2007)4

SCC 511 after analyzing all the authorities, Indian and

foreign, gave a non exhaustive list of the acts which may

amount o mental cruelty. It would be pertinent to reproduce

the relevant paras here:

"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.

It is a settled legal position that for constituting mental cruelty

the conduct complained of has to touch a pitch of severity. It

has to be something more than the ordinary wear and tear of

married life. Matrimony is the metaphor of bittersweet events

coupled with conjugal kindness and at times coldness and

neglect. The court cannot on a few isolated acts complained of

by the petitioner dissolve the holy bond of matrimony

magnifying the petty differences which can be ironed out with

perseverance and trust.

10. Coming to the facts of the case at hand, on careful

analysis the allegations of cruelty leveled by the appellant

against the respondent appear to be totally concocted and

baseless. The appellant has alleged that on 26.1.2002 at about

7.00 p.m. the respondent after getting irritated threw a glass

of water on the face of the appellant when he asked her to

provide dinner. This allegation absolutely sounds senseless as

nobody would throw a glass of water merely because she was

asked to provide a dinner. Similarly the allegation of 18th May,

2002 when at 11.00 p.m. the respondent asked the appellant

to lodge a complaint with the CPWD office for getting

tenanted premises repaired equally sounds illogical and

incomprehensible as the respondent being an educated lady

would not at least ask her husband to lodge a complaint at

CPWD office at 11.00 p.m. when the CPWD office would not

even be in operation at such odd hours. The other allegations

leveled by the appellant also appear to be mere trivialities and

based on the same, the appellant cannot claim the grant of

decree of judicial separation. This Court therefore does not

find any infirmity, perversity or illegality in the conclusion

arrived at by the learned trial court.

11. in the light of the above discussion, this court does

not find any merit in the present appeal. The same is hereby

dismissed. The order dated 16.7.2009 passed by the learned

trial court is accordingly upheld.

March, 03 2011                        KAILASH GAMBHIR, J