Madhya Pradesh High Court
Kalpana Jat vs Balveer Singh Jat on 13 February, 2024
Author: Rohit Arya
Bench: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
FIRST APPEAL No. 558 of 2023
BETWEEN:-
KALPANA JAT W/O SHRI BALVEER SINGH
JAT, AGED ABOUT 38 YEARS, R/O VIKAS
NAGAR SHEOPUR (MADHYA PRADESH)
.....Appellant
(SHRI PRASHANT SHARMA-ADVOCATE)
AND
BALVEER SINGH JAT S/O LATE SHRI
BALARAMJI JAT, AGED ABOUT 43
YEARS, R/O VILLAGE SALMANYA PS.
AAWDA DISTT. SHEOPUR (MADHYA
PRADESH)
.....RESPONDENT
(SHRI JITENDRA SHARMA- ADVOCATE)
--------------------------------------------------------------------------------
Reserved on : 02.2.2024
Pronounced on : 13.2.2024
--------------------------------------------------------------------------------
This First Appeal having been heard and reserved for
Signature Not Verified
Signed by: MADHU judgment, coming on for pronouncement this day, Hon'ble Shri
SOODAN PRASAD
Signing time: 15-02-2024
02:31:40 PM Justice Binod Kumar Dwivedi pronounced the following :
2
JUDGMENT
The appellant/wife has preferred this appeal under Section
19 of the Family Courts Act, 1984 assailing the judgment and
decree passed by the Principal Judge, Family Court, Sheopur in
Case No. RCS/HM/19/2022 on 13.01.2023, whereby the suit filed
by the appellant under Section 13 of the Hindu Marriage Act (for
short hereinafter shall be referred as "HMA") for the relief of
divorce has been dismissed.
2. It is undisputed that appellant/wife Smt. Kalpana Jaat and
respondent/husband Balveer Singh are husband and wife. Their
marriage was solemnized as per Hindu traditions/customs on
31.05.2005. It is also undisputed that out of their wedlock, first
daughter Nikita was born in 2007 and second daughter Divyanshi
was born in 2014.
2.1 It is also an admitted fact that appellant/wife is in
Government service on the post of Samvida Sikshak Grade-3 since
2006. It is also an admitted that due to the disputes and differences
between appellant and respondent, they are residing separately
since 01.04.2019. It is also admitted that appellant/wife Kalpana
Jaat (AW-1) had lodged a written report at Police Station Kotwali
District Sheopur on 29.09.2018 against the respondent/husband
for physical and mental cruelty meted out to her. It is also not in
dispute that respondent/husband had filed a civil suit under
SOODAN PRASAD for divorce on the ground of cruelty which was registered as Case
No.70/2019 H.M.A., but after appearance and filing of written
statement by appellant/wife Kalpana Jaat when issues were framed
and the suit was fixed for evidence, the respondent/husband
(applicant in that case) withdrew the case on 15.12.2021.
3. In nutshell, the facts as alleged by the appellant/wife in her
plaint before the learned Family Court are that after her
appointment as Samvida Sikshak Grade-3, behaviour of the
respondent slowly changed. He started doubting and levelling
unfounded allegations on her and also harassing her mentally &
physically. When on 28.09.2018, some person passed by in front
of house of their door, respondent started arguing and assaulted
her with a Mogri (short thick wooden stick used for cleaning
clothes) causing injury on several parts of her body. She also
sustained fracture in her hand. She reported the incident in writing
to the Police Station Kotwali District Sheopur on 29.09.2018, but
due to pressure of the relatives and tendering of apology by the
respondent, she did not press for action on that report.
3.1 After that incident, for some time behavior of the
respondent remained normal, but thereafter he again started
hurling filthy abuses on her and also started beating her. In the
month of April 2019, the respondent, after beating her and her
daughters, expelled them from matrimonial house. The appellant
thereafter for some time resided in rented accommodation and
plot in Vikas Nagar raising funds from loan taken from Bank and
presently she is residing in that house along with her daughters.
There has been no physical relations between the appellant and
respondent since 01.04.2019.
3.2 She has further stated that the respondent in the suit filed by
him under Section 13(a) of HMA levelled so many unfounded
allegations against her including that she remained busy on
whatsapp and facebook messenger with unknown persons. The
respondent after collecting data of some mobile numbers through
office of the Superintendent of Police, Sheopur, submitted the
same in that case. Fed up with the allegations and unwanted
activities of the respondent, she gave her oral consent for divorce
before the Court. On this, the respondent withdrew his case from
the Court on 15.12.2021. Thus, being mentally and physically
harassed from the unfounded allegations of the respondent, now
she is unable to continue marital relationship with
respondent/husband. She is also entitled to get back her stridhan:
TV, fridge, Sofa, bed, mattress and other household items of
Rs.3,00,000/-, jewellery of Rs.5,00,000/- along-with cash of
Rs.3,00,000/- from the respondent, which were given by her father
at the time of her marriage. On these premises, she has prayed for
dissolving the marriage solemnized on 31.05.2005 with a direction
to the respondent to return her Stridhan, jewellery and cash as
mentioned herein above.
stated that at the time of marriage, the appellant was studying in
B.A. first year. He helped in pursuing her studies of B.A., M.A.
and D.Ed. and after that in getting appointed her on the post of
Samvida Sikshak Grade-3. He always encouraged and helped her
by providing her physical and monetary aid in progression of her
career. On 28th September, 2019 when he objected and stopped
appellant from having conversation on mobile phone, in fit of
anger, she scuffled with him, assaulted him by Mogri, damaged
the washing machine and also attempted to get her injured by
hitting her head. After this, the appellant called her father and
brother who forcibly expelled the respondent from his house. For
about 40 days he was on the road as she did not allow him to enter
home.
3.4 It is further alleged by the respondent that when appellant
had gone to her maternal uncle's house at Halgavdakhurd, she fell
down from the scooty and sustained fracture in her hand. When he
was taking her to doctor Lalit Sharma for treatment, purse of the
appellant was with him. On perceiving vibrations, when he took
out her mobile phone from the purse, the appellant got
bewildered, suddenly snatched the mobile phone from him and
also bitten him.
3.5 The plot situated at Vikas Nagar was purchased by him
pledging the land of his brother. For raising construction on that
plot, he also sold his car and took loan from the market, but due to
construction of the house may be carried out after harvesting
season, she got annoyed. On 1.4.2019 she abused him and after
calling her father and brother left matrimonial home along with
her daughters and all Stridhan; jewellery and domestic items. He
has not levelled any allegation on her character in the suit filed by
him under Section 13(a) of the Hindu Marriage Act. The
respondent always loved and till date loves her. He has neither
committed any cruelty nor has ever attempted to defame her. Due
to some differences between them, she has filed the suit for
divorce on false ground which deserves dismissal.
3.6 On the pleadings of the parties, learned Family Court
framed issues, giving opportunity to the parties to adduce evidence
in support of their pleadings and after affording reasonable
opportunity of hearing, passed the impugned judgment and decree
which gave rise to present appeal.
4. Learned counsel for the appellant submits that after
appellant joined on the post of Samvida Sikshak Grade-3, the
respondent started doubting on her character and on baseless
allegations started harassing her physically and mentally. She has
been off and on physically assaulted by the respondent. Compelled
by the circumstances, she filed a written report on 29.9.2018 at
police Station Kotwali Sheopur against the respondent but to save
her matrimonial relations and under pressure of her family
members and relatives she did not press that application, but even
1.4.2019 after physically assaulting the appellant and her
daughters he expelled them from matrimonial house and since
then she is residing with her daughters separately in the house got
constructed by her. The respondent levelled so many unfounded
allegations in the plaint filed under Section 13(a) of the HMA
which was registered as 70/2019 H.M.A. When she appeared in
the Court and controverted the allegations by filing written
statement, the respondent having no evidence to prove his case
withdrew it on 15.12.2021 and when the appellant filed the suit for
divorce on the ground of mental and physical cruelty, the
respondent desperately opposed it misusing his position as
practising advocate at Civil Court, Sheopur. This is in itself an
instance of cruelty against the appellant; therefore, she deserves
for the relief of divorce as prayed for.
5. Per contra, learned counsel for the respondent submits that
the respondent has always remained helpful to the appellant and
after marriage he helped her in pursuing her studies and also in
her career progression in teaching line and got her appointed as
Samvida Sikshak Grade-3. He has never caused any mental or
physical cruelty to the appellant. General wear and tear of family
life has been exaggerated for encompassing it in the term "mental
cruelty". The appellant has filed this suit for divorce on baseless
allegations. Learned trial Court duly appreciated the evidence on
record and found that one and two instances of dispute and quarrel
SOODAN PRASAD mentioned in Section 13 of the Act for the decree of divorce, and
therefore, dismissed the suit which is neither illegal nor perverse.
The appellant does not deserve for any relief as prayed for by her.
The appeal filed by her has no substance and therefore may be
dismissed.
6. Heard learned counsel for the parties at length and perused
the record.
7. Before adverting to the facts of the case in hand, it is
pertinent to consider the legal provisions under HMA and also
exposition of law as propounded by the Hon'ble Apext Court in
catena of judgments relating to decree of divorce on the ground of
mental cruelty.
7.1. Word "cruelty" has not been defined in the H.M.A. Indeed it
could not have been defined. It has been used in relation to human
conduct or human behaviour. It is the conduct in relation to or in
respect of matrimonial duties and obligations. It is a course of
conduct of one which is adversely affecting the other. The cruelty
may be mental or physical, intentional or unintentional. What is
cruelty in one case may not amount to cruelty in another case. It is
a matter to be determined in each case having regard to the facts
and circumstances of that case
7.2 The cruelty simpliciter is now a ground for divorce under
Section 13 of the HMA. Section 13 of the HMA provides, so far
as it is material:
whether before or after the commencement of this
02:31:40 PM Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of
divorce on the ground that the other party--
(i-a) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or"
7.3 In case of Shobha Rani v. Madhukar Reddi, (1988) 1
SCC 105 : 1988 SCC (Cri) 60 at page 108 the Apex court has
made some observations with regard to the term cruelty which
may profitably be reproduced here as they are still relevant :
"4. Section 13(1)(i-a) uses the words "treated the
petitioner with cruelty". The word "cruelty" has not
been defined. Indeed it could not have been defined.
It has been used in relation to human conduct or
human behaviour. It is the conduct in relation to or in
respect of matrimonial duties and obligations. It is a
course of conduct of one which is adversely affecting
the other. The cruelty may be mental or physical,
intentional or unintentional. If it is physical the court
will have no problem to determine it. It is a question
of fact and degree. If it is mental the problem presents
difficulty. First, the enquiry must begin as to the
nature of the cruel treatment. Second, the impact of
such treatment on the mind of the spouse. Whether it
caused reasonable apprehension that it would be
harmful or injurious to live with the other. Ultimately,
it is a matter of inference to be drawn by taking into
account the nature of the conduct and its effect on the
complaining spouse. There may, however, be cases
where the conduct complained of itself is bad enough
and per se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be
enquired into or considered. In such cases, the cruelty
will be established if the conduct itself is proved or
SOODAN PRASAD admitted.
Signing time: 15-02-2024
02:31:40 PM 5. It will be necessary to bear in mind that there has
been a marked change in the life around us. In
matrimonial duties and responsibilities in particular,
we find a sea change. They are of varying degrees
from house to house or person to person. Therefore,
when a spouse makes complaint about the treatment
of cruelty by the partner in life or relations, the court
should not search for standard in life. A set of facts
stigmatised as cruelty in one case may not be so in
another case. The cruelty alleged may largely depend
upon the type of life the parties are accustomed to or
their economic and social conditions. It may also
depend upon their culture and human values to which
they attach importance. We, the judges and lawyers,
therefore, should not import our own notions of life.
We may not go in parallel with them. There may be a
generation gap between us and the parties. It would
be better if we keep aside our customs and manners.
It would be also better if we less depend upon
precedents. Because as Lord Denning said in Sheldon
v. Sheldon [(1966) 2 All ER 257, 259] "the categories
of cruelty are not closed". Each case may be different.
We deal with the conduct of human beings who are
not generally similar. Among the human beings there
is no limit to the kind of conduct which may
constitute cruelty. New type of cruelty may crop up in
any case depending upon the human behaviour,
capacity or incapability to tolerate the conduct
complained of. Such is the wonderful (sic) realm of
cruelty."
7.4 In case of V. Bhagat Mrs. D. Bhagat, (1994) 1 SCC 337:
AIR 1994 SC 710, Supreme Court in para 16 has held as under:-
"16. Mental cruelty in Section 13(1)(i-a) can broadly
be defined as that conduct which inflicts upon the
make it not possible for that party to live with the
02:31:40 PM other. In other words, mental cruelty must be of such
a nature that the parties cannot reasonably be
expected to live together. The situation must be such
that the wronged party cannot reasonably be asked to
put up with such conduct and continue to live with
the other party. It is not necessary to prove that the
mental cruelty is such as to cause injury to the health
of the petitioner. While arriving at such conclusion,
regard must be had to the social status, educational
level of the parties, the society they move in, the
possibility or otherwise of the parties ever living
together in case they are already living apart and all
other relevant facts and circumstances which it is
neither possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to cruelty
in another case. It is a matter to be determined in
each case having regard to the facts and
circumstances of that case. If it is a case of
accusations and allegations, regard must also be had
to the context in which they were made."
7.5 Similarly in case of Ravi Kumar v. Julmidevi, [(2010) 4
SCC 476] the apex court reiterated that cruelty in matrimonial
cases may be of so many forms. Para 19 to 21 may be reproduced
to elucidate the concept of cruelty in matrimonial cases:
"19. It may be true that there is no definition of
cruelty under the said Act. Actually such a definition
is not possible. In matrimonial relationship, cruelty
would obviously mean absence of mutual respect and
understanding between the spouses which embitters
the relationship and often leads to various outbursts
of behaviour which can be termed as cruelty.
Sometime cruelty in a matrimonial relationship may
take the form of violence, sometime it may take a
an approach. Silence in some situations may amount
02:31:40 PM to cruelty.
20.Therefore, cruelty in matrimonial behaviour defies
any definition and its categories can never be closed.
Whether the husband is cruel to his wife or the wife is
cruel to her husband has to be ascertained and judged
by taking into account the entire facts and
circumstances of the given case and not by any
predetermined rigid formula. Cruelty in matrimonial
cases can be of infinite variety--it may be subtle or
even brutal and may be by gestures and words. That
possibly explains why Lord Denning in Sheldon v.
Sheldon [(1966) 2 WLR 993 : (1966) 2 All ER 257
(CA)] held that categories of cruelty in matrimonial
cases are never closed.
21. This Court is reminded of what was said by Lord
Reid in Gollins v. Gollins [1964 AC 644 : (1963) 3
WLR 176 : (1963) 2 All ER 966 (HL)] about judging
cruelty in matrimonial cases. The pertinent
observations are : (AC p. 660)
"... In matrimonial cases we are not concerned
with the reasonable man as we are in cases of
negligence. We are dealing with this man and this
woman and the fewer a priori assumptions we make
about them the better. In cruelty cases one can hardly
ever even start with a presumption that the parties are
reasonable people, because it is hard to imagine any
cruelty case ever arising if both the spouses think and
behave as reasonable people."
The aforesaid passage was quoted with approval by
this Court in N.G. Dastane (Dr.) v. S. Dastane [(1975)
2 SCC 326] ".
7.6 The above observations are intended to emphasize that the
Court in matrimonial cases is not concerned with ideals in family
life. The Court has only to understand the spouses concerned as
nature made them, and consider their particular grievance. As Lord
02:31:40 PM Reid observed in Gollins v. Gollins [(1963) 2 All ER 966, 972] :
"In matrimonial affairs we are not dealing with
objective standards, it is not a matrimonial offence to
fall below the standard of the reasonable man (or the
reasonable woman). We are dealing with this man or
this woman."
7.7 Chandrachud, J. (as he then was) in N.G. Dastane v. S.
Dastane [(1975) 2 SCC 326, 338 : AIR 1975 SC 1534 : (1975) 3
SCR 967, 978] in para 32 observed as:
"The court has to deal, not with an ideal husband and
an ideal wife (assuming any such exist) but with the
particular man and woman before it. The ideal couple
or a near-ideal one will probably have no occasion to
go to a matrimonial court for, even if they may not be
able to drown their differences, their ideal attitudes
may help them overlook or gloss over mutual faults
and failures."
7.8 In case of Samar Ghosh Vs Jaya Ghosh[ (2007) 4 SCC
511] allowing the appeal, the Supreme Court in para 98 to 101
has held as under:
"98. On proper analysis and scrutiny of the judgments
of this Court and other courts, we have come to the
definite conclusion that there cannot be any
comprehensive definition of the concept of "mental
cruelty" within which all kinds of cases of mental
cruelty can be covered. No court in our considered
view should even attempt to give a comprehensive
definition of mental cruelty.
99. Human mind is extremely complex and human
behaviour is equally complicated. Similarly human
ingenuity has no bound, therefore, to assimilate the
Signing time: 15-02-2024 entire human behaviour in one definition is almost
02:31:40 PM
impossible. What is cruelty in one case may not
amount to cruelty in other case. The concept of cruelty
differs from person to person depending upon his
upbringing, level of sensitivity, educational, family
and cultural background, financial position, social
status, customs, traditions, religious beliefs, human
values and their value system.
100.Apart from this, the concept of mental cruelty
cannot remain static; it is bound to change with the
passage of time, impact of modern culture through
print and electronic media and value system, etc. etc.
What may be mental cruelty now may not remain a
mental cruelty after a passage of time or vice versa.
There can never be any straitjacket formula or fixed
parameters for determining mental cruelty in
matrimonial matters. The prudent and appropriate way
to adjudicate the case would be to evaluate it on its
peculiar facts and circumstances while taking
aforementioned factors in consideration.
101. No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate
some instances of human behaviour 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
SOODAN PRASAD clear that situation is such that the wronged party
02:31:40 PM 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
Signing time: 15-02-2024 the ground of mental cruelty.
02:31:40 PM
(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 sterilisation 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
Signing time: 15-02-2024 7.9 It has also been held in Samar Ghosh (supra) where on
facts there has been irretrievable breakdown of marriage, the party
opposing the divorce and not letting go the other party free of the
matrimonial bond, would be causing mental cruelty to the other
party. This makes considerable sense in the Indian context where
to reach finality by exhausting the remedy of appeals may take
several years. In such situation the party opposing the grant of
divorce may, in some cases, be doing so only out of spite, either to
harass the other party or prevent it from remarrying or out of sheer
cussedness. That may indeed also confirm the allegation that such
party had been causing mental cruelty, and was now intent on
causing further mental cruelty by opposing the divorce.
7.10 Relying upon judgment in Shobha Rani (supra) in A
JAYCHANDRA Vs. ANEEL KAUR [ (2005) 2 SCC 22]
allowing the appeals, the Supreme Court in para 10 to 14 held as
under:
"10.The expression "cruelty" has not been defined in
the Act. Cruelty can be physical or mental. Cruelty
which is a ground for dissolution of marriage may be
defined as wilful and unjustifiable conduct of such
character as to cause danger to life, limb or health,
bodily or mental, or as to give rise to a reasonable
apprehension of such a danger. The question of mental
cruelty has to be considered in the light of the norms of
marital ties of the particular society to which the parties
belong, their social values, status, environment in
which they live. Cruelty, as noted above, includes
mental cruelty, which falls within the purview of a
SOODAN PRASAD from the conduct of the spouse same is established
02:31:40 PM and/or an inference can be legitimately drawn that the
treatment of the spouse is such that it causes an
apprehension in the mind of the other spouse, about his
or her mental welfare then this conduct amounts to
cruelty. In a delicate human relationship like
matrimony, one has to see the probabilities of the case.
The concept, proof beyond the shadow of doubt, is to
be applied to criminal trials and not to civil matters and
certainly not to matters of such delicate personal
relationship as those of husband and wife. Therefore,
one has to see what are the probabilities in a case and
legal cruelty has to be found out, not merely as a matter
of fact, but as the effect on the mind of the complainant
spouse because of the acts or omissions of the other.
Cruelty may be physical or corporeal or may be mental.
In physical cruelty, there can be tangible and direct
evidence, but in the case of mental cruelty there may
not at the same time be direct evidence. In cases where
there is no direct evidence, courts are required to probe
into the mental process and mental effect of incidents
that are brought out in evidence. It is in this view that
one has to consider the evidence in matrimonial
disputes.
11. The expression "cruelty" has been used in relation
to human conduct or human behaviour. It is the conduct
in relation to or in respect of matrimonial duties and
obligations. Cruelty is a course or conduct of one,
which is adversely affecting the other. The cruelty may
be mental or physical, intentional or unintentional. If it
is physical, the court will have no problem in
determining it. It is a question of fact and degree. If it is
mental, the problem presents difficulties. First, the
enquiry must begin as to the nature of cruel treatment,
second the impact of such treatment in the mind of the
spouse, whether it caused reasonable apprehension that
it would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by
taking into account the nature of the conduct and its
02:31:40 PM effect on the complaining spouse. However, there may
be a case where the conduct complained of itself is bad
enough and per se unlawful or illegal. Then the impact
or injurious effect on the other spouse need not be
enquired into or considered. In such cases, the cruelty
will be established if the conduct itself is proved or
admitted. (See Shobha Rani v. Madhukar Reddi
[(1988) 1 SCC 105 : 1988 SCC (Cri) 60 : AIR 1988 SC
121] .)
12. 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 an 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.
02:31:40 PM
13. 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.
14. 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
hypersensitive approach would be counterproductive to
the institution of marriage. The courts do not have to
deal with ideal husbands and ideal wives. It has to deal
with a particular man and woman before it. The ideal
couple or a mere ideal one will probably have no
occasion to go to Matrimonial Court. [See N.G.
Dastane (Dr.) v. S. Dastane [(1975) 2 SCC 326 : AIR
02:31:40 PM 1975 SC 1534] .]"
7.11 In case of Ramchander v. Ananta,[(2015) 11 SCC 539]
Supreme court in para 10 has held that cruelty can be inferred from
the fact and circumstances
"10. The expression "cruelty" has not been defined in
the Hindu Marriage Act. Cruelty for the purpose of
Section 13(1)(i-a) is to be taken as a behaviour by one
spouse towards the other, which causes a reasonable
apprehension in the mind of the latter that it is not safe
for him or her to continue the matrimonial relationship
with the other. Cruelty can be physical or mental. In
the present case there is no allegation of physical
cruelty alleged by the plaintiff. What is alleged is
mental cruelty and it is necessarily a matter of
inference to be drawn from the facts and circumstances
of the case. It is settled law that the instances of
cruelty are not to be taken in isolation but to take the
cumulative effect of the facts and circumstances
emerging from the evidence on record and then draw a
fair inference whether the plaintiff has been subjected
to mental cruelty due to conduct of the other spouse.
In the decision in Samar Ghosh case [Samar Ghosh
v.Jaya Ghosh, (2007) 4 SCC 511] this Court set out
illustrative cases where inference of "mental cruelty"
can be drawn and they are only illustrative and not
exhaustive."
7.12 In the light of the law propounded by the Apex Court in the
aforementioned judgments, we would dwell upon factual matrix of
the case in hand for assessing whether the appellant could make
out a case for divorce on the ground of "cruelty" as given in
Section 13(1)(ia) of HMA and whether learned Family Court has
perspective as per the prevailing norms of law.
7.13 Appellant Kalpana Jat (AW-1) reiterating the facts alleged
in the plaint has stated in her statement before the Court that after
her appointment on the post of Samvida Shikshak Grade III when
she started going school for her duties, the behaviour of her
husband/respondent changed and he started doubting her. He was
frequently questioning as to why she talks to anyone, as to why
she looks towards anyone. On 28.9.2018 when she was cutting
vegetables on her house for cooking food, some person passed by
in front of their house, the respondent enquired from her about
that person. When she replied that she did not know him, he
started quarreling with her. He locked her elder daughter Nikita in
the bathroom and assaulted her with Mogri due to which her hand
got fractured and she also suffered injuries on her head and legs.
She reported the incident by filing complaint at police Station,
Kotwali, Sheopur. After that, her family members came there and
on their advice and persuasions, she did not press that report, but
even after that incident, the cruel behaviour of the
respondent/husband towards her continued. He was repeatedly
raising disputes and harassing her. On 1.4.2019 her husband after
beating her and her daughters expelled them from matrimonial
house. Thereafter she started living in rented accommodation and
when she managed to get constructed a house at Vikas Nagar
taking loan from the bank, she along with her daughters moved
7.14 Substantiating the pleadings in the plaint, she has further
stated that respondent had filed a suit for divorce levelling
unfounded allegations against her and after some time he
withdrew that case. Documents relating to the suit filed by the
respondent are Ex.P/2 to Ex.P/4. He has scandalized her levelling
unfounded allegations on her character. She has been continuously
harassed by the respondent which brought unbearable ignominy to
her, therefore, she is unable to live with the respondent/husband
and under such compelling circumstances she filed the suit.
7.15 In cross-examination, her testimony could not be shaken so
as to make her statement unbelievable. The written report (Ex.P/1)
filed by the appellant is on record which itself is proof of her pain
which she was suffering at the hand of the respondent. She has
given a natural explanation for not pressing that report just to save
her family life. She has specifically stated in cross-examination
that just after marriage her husband started doubting on her
character. She has controverted the suggestion that her husband
was giving her due respect and never harassed her. She has also
refuted the suggestion that she was not expelled from the
matrimonial house by the respondent on 1.4.2019.
7.16 The respondent/husband Balveer Jat (NAW-1) in
unsuccessful attempt to belie the testimony of appellant has stated
before the Court that he always treated the appellant/wife with due
respect and till 2018 there was no dispute between them and if at
affair which happens in each and every family. He has further
stated that in August, 2018 when the appellant had gone to her
parental house on the occasion of Raksha Bandhan festival, she
fell down from the Scooty and her hand got fractured and from
that day disputes started between them. When respondent was
taking appellant for the treatment of fracture to Dr. Lalit Sharma
purse of the appellant was with him. When he tried to take out
mobile of the appellant on perceiving vibrations, the appellant
caught hold of her left hand and bitten him. Appellant herself
started disputes and after calling her father left matrimonial house
along with domestic items, Stridhan and her daughters and since
then she is residing separately without sufficient reason. On
1.4.2019 neither he assaulted appellant or her daughters nor
expelled them from the house. He has also stated that he did not
level any allegation on her character in the suit for the relief of
divorce filed by him. To show his bone fide, he has further stated
that he helped the appellant in pursuing her studies and getting her
appointed as Savida Shiksha Grade III. He was also taking her to
the school and bringing her back till 2012.
7.17 If we peruse in totality, the plaint filed by
respondent/husband for the relief of divorce in HMA case
no.70/2019, it is amply clear that he was having vigil eye over her
and raising objections when she was talking to anyone on mobile
phone stifling her privacy which gave rise to frequent disputes and
SOODAN PRASAD respondent/husband has alleged that she was keeping herself busy
on mobile, Whatsapp, Facebook messenger for hours with
unknown persons and was hurling abuses on him when he was
objecting. These allegations clearly indicate that
respondent/husband was having serious doubt on her character.
This type of allegation give clear cut inference that
respondent/husband has levelled allegations against her character
in the plaint Ex.P/2 as alleged by the appellant/wife which
constitutes cruelty in itself. The Apex Court in the case of K.
Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 in para 16 in
regard to mental cruelty has held as under :
"16.Thus, to the instances illustrative of
mental cruelty noted in Samar Ghosh
[(2007) 4 SCC 511], we could add a few
more. Making unfounded indecent
defamatory allegations against the spouse
or his or her relatives in the pleadings,
filing of complaints or issuing notices or
news items which may have adverse impact
on the business prospect or the job of the
spouse and filing repeated false complaints
and cases in the court against the spouse
would, in the facts of a case, amount to
causing mental cruelty to the other spouse."
7.18 It has been vehemently contended from the side of the
respondent that words used in the plaint (Ex.P/2) per se does not
reveal that respondent has made any allegation on the character of
appellant/wife, however, this contention does not find approval of
Signing time: 15-02-2024 Ramchander (supra) where in paragraph 10 quoted here in above
it has been held that it is settled law that the instances of cruelty
are not to be taken in isolation but to take the cumulative effect of
the facts and circumstances emerging from the evidence on record
and then draw a fair inference whether the plaintiff has been
subjected to mental cruelty due to conduct of the other spouse.
7.19 It is also pertinent to mention here that once respondent
himself filed a suit for divorce before the Family Court and in mid
way withdrew it sniffing his failure in the case and when the
appellant filed this case for divorce against him, he is vehemently
resisting it just to get engaged the appellant in litigation for life
long which is not uncommon in this type of cases. Here the
observation by the Apex Court in Naveen Kohli v. Neelu Kohli,
(2006) 4 SCC 558 can profitably be referred where the Supreme
Court on p. 582 in para 83 was constrained to conclude:
"Even at this stage, the respondent does not want
divorce by mutual consent. From the analysis and
evaluation of the entire evidence, it is clear that the
respondent has resolved to live in agony only to make
life a miserable hell for the appellant as well. This type
of adamant and callous attitude, in the context of the
facts of this case, leaves no manner of doubt in our
minds that the respondent is bent upon treating the
appellant with mental cruelty. It is abundantly clear
that the marriage between the parties had broken down
irretrievably and there is no chance of their coming
together, or living together again."
7.20 Learned Family Court in paragraphs 24 to 26 of the
impugned judgment has failed to appreciate the allegations in the
plaint (Ex.P/2) in right perspective. It has not considered the
pleadings in totality to reach the right conclusion.
7.21 Respondent/husband Balveer Singh (NAW-1) has stated in
paragraph 5 of his examination-in-chief that there was no dispute
between them till 2018. The dispute arose in the month of August,
2018 when appellant had gone to her parental house where she
met with an accident and sustained fracture in her hand. In
paragraph 8 he has stated that when he was taking the appellant to
Dr. Lalit Sharma for the treatment of fracture, on perceiving
vibration in the mobile phone of appellant, when he tried to take
out the mobile phone, the appellant caught hold of his left hand
and also bitten him. From that day, serious disputes started
between them. The respondent has not adduced even iota of
evidence that he ever reported this incident to his relatives or
convened any Panchayat for conciliation.
7.22 It is undisputed that respondent had filed a suit for divorce
against appellant on 27.8.2019. In plaint (Ex.P/2) paragraph 3 he
has stated that after one year of joining of the appellant on the post
of Samvida Shikak Grade III, she started treating him with cruelty
stating that he is not earning anything and is depended on her. She
was also hurling abuses on him before his guests. It is also
undisputed fact that appellant/wife had joined her services as
Samvida Shikshak Grade III in the year 2006. As such, the
statement of the respondent in para 5 of his examination-in-chief
clearly appears to be false. If there were no differences and
disputes between them, then why respondent had filed the suit for
divorce against the appellant on 27.8.2019 has not been explained
by the respondent.
7.23 Filing of the suit by the respondent for divorce with several
allegations of misbehaviour and unwanted intimacy with unknown
person amply proves the case of appellant that from the year 2006
when the appellant joined on the post of Samvida Shikshak Grade
III and was going to school for her duties, respondent started
doubting on her character, as alleged and substantiated by her.
which is also supported by the pleadings made by the respondent
in para 3 of the plaint filed by him. Thus, statement of the
respondent in this regard is not reliable. It is also a common
knowledge that for normal instances of cruelty, no Indian wife of
the society to which appellant belongs would have filed a suit for
divorce. These facts have not been properly analyzed by the
Family Court, therefore, conclusion of learned Family Court in
para 26 of the impugned judgment that there were mere general
quarrel and dispute between the appellant and respondent which is
only common wear and tear in life and it does not make out a
ground for divorce under H.M.A, is not sustainable being not
based on proper appreciation of evidence.
7.24 That apart, as mentioned hereinabove from 1.4.2019 the
parties are living separately and there has been no physical
efforts of mediation between the parties for living together as
husband and wife have gone in vain which itself proves that love
is lost, emotions are dried up, their marriage has broken
irretrievably and it has reduced to a mere fiction which is not the
spirit of marriage. It has been held in Samar Ghosh (supra) that
Once the parties have separated and the separation has continued
for a sufficient length of time and one of them has presented a
petition for divorce, it can well be presumed that the marriage has
broken down. The court, no doubt, should seriously make an
Endeavour to reconcile the parties; yet, if it is found that the
breakdown is irreparable, then divorce should not be withheld.
7.25 From the discussion as aforesaid, we are of the considered
view that learned Family Court has failed to appreciate the
evidence adduced by the parties in right perspective, and
therefore, the findings returned by the learned Family Court that
appellant could not make out a case for divorce on the ground of
cruelty cannot be approved.
7.26 Accordingly, while setting aside the judgment & decree
passed by the learned Family Court, the suit for the relief of divorce
on the ground of cruelty, as mentioned in Section 13(1)(ia) of the
HMA is decreed in favour of the appellant. The marriage between
the parties stands dissolved. So far as Stridhan in the form of
jewellery, goods and cash allegedly given by the parents of the
appellant are concerned, no reliable evidence has been adduced in
SOODAN PRASAD so wish can take recourse to law before appropriate forum.
The appeal stands allowed as indicated above.
Parties shall bear their own costs.
(Rohit Arya) (Binod Kumar Dwivedi)
Judge Judge
ms/-
