Nisha Gupta vs Uday Chand Gupta
2023 Latest Caselaw 4040 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
               Miscellaneous Appeal No.5 of 2018
======================================================

Nisha Gupta Daughter of Late Mathura Prasad, wife of Sri Uday Chand Gupta resident of Mohalla Jhing Nagar PS Bihar District Nalanda.

... ... Appellant/Defendant

Versus

Uday Chand Gupta Son of Guru Prasad Sao resident of Mohalla Jhing Nagar PS Bihar District Nalanda.

... ... Respondent/Plaintiff ====================================================== Appearance :

For the Appellant/s : Mr. Sudish Kumar, Advocate For the Respondent/s : Mr. Shashank Chandra, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI

and

HONOURABLE MR. JUSTICE JITENDRA KUMAR

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)

Date : 25-08-2023

The present appeal has been filed under Section

19(1) of the Family Courts Act, 1984 impugning the judgment

dated 07.10.2017, passed by Ld. Principal Judge, Family Patna High Court MA No.5 of 2018 dt. 25-08-2023

Court, Nalanda at Biharsharif in Divorce Case No. 72 of 2008,

whereby the petition filed under Section 13 of the Hindu

Marriage Act on 29.07.2008, praying for decree of divorce

dissolving the marriage between the parties, has been allowed

dissolving the marriage between the parties by decree of

divorce.

2. The case of the Respondent-Plaintiff, as per the

pleadings, is that the Respondent-Plaintiff was married with

the Appellant-Defendant on 10th July, 1987 as per Hindu rites

and customs. Since the marriage, they lived together as

husband and wife and out of wedlock two sons were born. The

elder son, namely, Narendra Bharti was born on 16 th May,

1991 and the younger son, namely Aditya Kumar was born on

15th of August, 1998. It is further averred that after birth of

second son, the nature of the Appellant-Defendant-wife got

completely changed and she always used to quarrel with the

old mother of the Respondent-Plaintiff-husband. It is further

averred that she used to leave her husband's house without any

information and when the husband or his mother asked, she

used to use filthy language against husband and his mother

and she was not ready even to talk with them. She was also not

ready to prepare meal and she had left everything with his old Patna High Court MA No.5 of 2018 dt. 25-08-2023

mother as a result, the life of the husband became hell. It is

further averred that there was no cohabitation since 1999 till

date, hence the wife had deserted the husband continuously for

ten years. It is further averred that since 1999, the wife treated

the husband with cruelty, which is apparent from the following

facts - (i) the wife was making food after taking all material

separately and was not ready to prepare food for husband and

she always used to quarrel with him, which forced the

petitioner to live separately at upper floor of the house and the

wife is living at the ground floor having no concern with each

other. So the husband started taking food in the hotel. When

she left the house for 4 and 5 months continuously, in that

situation, the Respondent-Plaintiff was making food for

himself and for his minor sons, but when the wife came, she

forced her sons not to talk with his father and due to fear from

wife, the sons could not dare to talk with the Respondent-

Plaintiff. (ii) Although the Appellant-Plaintiff was maintaining

his two sons giving all expenditure, the wife always used to

threaten the husband to lodge criminal case against him and

always went to local police station for lodging of false case.

(iii) The Appellant-Defendant-wife sold rice, wheat and other

grains from the fields of the husband behind his back and also Patna High Court MA No.5 of 2018 dt. 25-08-2023

sold all the costly utensils of silver and brass worth ₹60,000/-

and also sold the entire gold and silver ornaments which was

given by the husband on the occasion of the marriage and

when Respondent-Plaintiff said anything, the wife used to

abuse him. (iv) The wife threatened the husband to kill him

with the help of anti-social elements. Hence it is impossible

for the husband to live with his wife. (v) On several occasions,

the husband fell seriously ill and admitted in Prashant clinic at

Bharaoper, but the wife never came to see him.

3. It is further averred that the husband tried his

best, but ten years have passed and the wife never cared or was

ready to live with the husband. It is also averred that the

husband has not filed any matrimonial case prior to the present

one.

4. On notice, the Appellant-Defendant had

appeared before the learned Family Court and filed her written

statement. In her written statement, she has admitted her

marriage and birth of two children out of wedlock. But she has

denied all other allegations made against her. It is claimed by

the Appellant-Defendant-wife that the Respondent-Plaintiff is

an agent of an Insurance business and he is also an active

member of RSS and BJP and high office holder. Consequently, Patna High Court MA No.5 of 2018 dt. 25-08-2023

he has developed intimacy with some beautiful ladies, one of

them is from Rajgir and she was frequently taken by the

husband to his house and on objection raised by her, her

husband used to beat her and on account of that relationship,

he used to come home late in night and he was indifferent

towards her and stopped taking interest in her. However,

whenever, he came to her, she welcomed him and it is wrong

to say that there is no cohabitation for last ten years. She

further averred that she does not know the name of the lady

with whom, her husband has intimacy, but she knows her face

and this divorce petition has been filed with intent to marry

her. It is also averred that the husband has deserted not only

her but even his two sons also. He does not cooperate with

them, nor meet their expenses for education and that is why

elder son was forced to drop his studies after passing

Intermediate examination. It is also claimed that whenever his

younger son asked for clothes and other essential items and

books, he used to beat him. It is also claimed that on account

of his political life as an active member of RSS and BJP, local

police station has gone in connivance with him and does not

lodge a case against him. She has also claimed that she is a

Pardanaseen lady and she does not go outside, hence there is Patna High Court MA No.5 of 2018 dt. 25-08-2023

no question of having any contact with any antisocial elements

and there is no question of making any attempt to kill her

husband with the help of criminals.

5. It is also averred that she is always ready to

live with him and the fact is that the husband himself has ill

design to get rid of her on account of illicit relationship with

other lady. It is also averred that her husband used to harass

her in different ways like beating and depriving her of food

and house hold items and not allowing neighbouring lady to

talk to her so that she feels lonely. It is also averred that the

husband himself shifted to other floor of the house and does

not allow the wife and sons to come to that floor where he

used to live and he frequently resides away from house and

whenever he comes, he comes late in night and till then the

wife waits for opening the door and whenever she gets late in

opening the door on account of her falling asleep, her husband

used to beat her. It is also averred that whenever she goes

outside the house for offering Puja in temple, the husband

immediately closes the door and on her return, he does not

open the door without making undue delay. It is further

claimed that the husband used to earn ₹12,000/- per month as

commission from Insurance business and ₹5,000/- per month Patna High Court MA No.5 of 2018 dt. 25-08-2023

from business of lending money. He has also ancestral landed

property having income of ₹2 lacs per annum from cultivation

and despite such income, he does not maintain the wife and his

sons.

6. On the basis of pleadings of the parties, the

following issues were framed:

" (i) Whether the suit is maintainable.

(ii) Whether the Plaintiff has cause of action to the file plaint.

(iii) Whether the Defendant is legally wedded wife of the Plaintiff.

(iv) Whether the Defendant treats the Plaintiff with cruelty.

(v) Whether the Plaintiff is entitled to decree of divorce.

(vi) Whether the Plaintiff is entitled to any other relief."

7. The Respondent/Plaintiff has examined the

following five witnesses in support of his plaint during the

trial :

i) P. W-1- Dilip Kumar Singh on 14.07.2009

ii) P.W. -2 - Parasnath on 15.02.2010

iii) P.W.-3- Parashuram Kumar on 24.02.2010

(iv) P.W.-4 - Vinod Kumar on 15.03.2010

(v) P.W.-5- Uday Chand Gupta on 26.03.2010 Patna High Court MA No.5 of 2018 dt. 25-08-2023

8. Dilip Kumar Singh, who has been examined as

PW-1, is acquainted with both the parties and in his

examination-in-chief filed by way of affidavit, he has deposed

that the wife of the Respondent-Plaintiff is of angry nature and

she behaves with her husband with cruelty and neglect and she

used to go mayake and other places without any information or

permission of her husband. Sometimes, she used to go for

months, leaving the little sons resulting in hardship and mental

tensions of her husband. When asked by the husband, she used

to abuse him. In his cross examination, he has deposed that the

Defendant-Wife is of angry nature. He has also deposed that

he had gone to the house of the Plaintiff/Respondent 8 years

back and he had visited his house several times. He has further

deposed that the husband is a rich man having 10-12 bigha of

land and he is also working as an insurance agent. He has

denied the suggestion that he has deposed falsely regarding the

nature of the wife of the Respondent Plaintiff.

9. Parasnath, who has been examined as P.W-2 is

acquainted with both the parties and in his examination-in-chief Patna High Court MA No.5 of 2018 dt. 25-08-2023

filed by way of affidavit, has reiterated the statement as made by

the Plaintiff/Respondent in his petition. In his

cross examination, he has admitted that he does not know the

name of the landlord of the house where the parties live. He is

also not in a position to tell the name of the people living in the

adjoining houses. He has denied the suggestion that the parties

live in their own house and not in a rented house. He is also not

in a position to say anything about the education of the children.

He is also not in a position to say whether the parties are

separate in mess. He has also denied the suggestion that he has

deposed falsely.

10. Parashuram Kumar- who has been examined as

PW-3, is acquainted with both the parties and he is a friend of

the Respondent-Husband and in his examination-in-chief filed

by way of affidavit, has reiterated the statement as made by the

husband in his petition for divorce. In his cross examination, he

has deposed that the husband is living separately from his

mother for about 10-12 years and his mother is living with her

other son, Shivratan Prasad Gupta. He has further deposed that Patna High Court MA No.5 of 2018 dt. 25-08-2023

the elder son of the parties was studying in Ranchi after passing

Matric examination, but he does not know where he is studying

at present. Both the sons are living with their mother. He has

further deposed that the Respondent/Plaintiff is presently living

away from his home. He has also deposed that he does not know

whether education of the elder son is hampered on account of

non-payment of the expense by the Plaintiff-Father. He has also

deposed that he has not seen the Defendant- Nisha Gupta selling

wheat, rice etc., but he has heard it from the Plaintiff, Uday

Chand Gupta. He has further deposed that for 5 years, Uday

Chand Gupta is not going home and there is no relationship of

husband wife between the parties.

11. Vinod Kumar, who has been examined as

P.W.-4, is also acquainted with both the parties and he is a

friend of the Plaintiff/Respondent and in examination-in-chief

filed by way of affidavit, he has reiterated the Statement as

made in the petition for divorce. In his cross examination, he

has admitted that the Plaintiff/Respondent is his friend, though

he is not a relative. He has further deposed that presently the Patna High Court MA No.5 of 2018 dt. 25-08-2023

Respondent/Plaintiff is living in the office of RSS and he

along with the Plaintiff/Respondent is a member of RSS. He

has further deposed that elder son, Narendra is doing a job in

Delhi as he has heard, but he has denied the suggestion that he

is not doing any job and he has been ousted by the

Plaintiff/Respondent. He has further deposed that the younger

son, Aditya is studying in Career Public School at Ranchi. But

he is not aware who maintains his expenditure but he has also

denied the suggestion that it is maintained by parental family

members of the Defendant-Wife. He has further deposed that

the Plaintiff/Respondent is an LIC agent and has monthly

income of Rs. 8-10 thousand and the Plaintiff/Respondent also

has landed property of 5-7 bighas. There is no other significant

Statement made by the witnesses in his cross examination.

12. Uday Chand Gupta, who is the

Plaintiff/Respondent himself has been examined as P.W.-5 and

in his examination-in-chief, filed by way of affidavit, he has

reiterated the Statement as made in the divorce petition. In his

cross examination, he has deposed that the wife is still living Patna High Court MA No.5 of 2018 dt. 25-08-2023

in his house and her elder son, Narendra is doing a job in

Delhi but he does not know in which department he is doing

job. He has also deposed that his second son, Aditya is

studying in Career Public School at Ranchi. He has also

deposed that presently, he is residing in RSS office. He has

further deposed that the wife and children do not live with

him. He has further deposed that he is an LIC agent but such

business is over. However, he has income from the old policy

by way of commission. He is on talking terms with his

brothers and mother. He has also further deposed that for about

10 years, he is not on talking terms with his wife. He has

denied the suggestion that prior to filing the divorce petition

he was on talking terms with his wife and he had a conjugal

relationship with her and only after going to the rented house

his conjugal life has ended. He has also denied the suggestion

that he is linked with a political party.

13. The Appellant/Defendant has examined the

following four witnesses in support of her defence during the

trial :

Patna High Court MA No.5 of 2018 dt. 25-08-2023

i) D.W.-1 - Nisha Gupta on 12.05.2010

ii)D.W.-2- Suresh Prasad Gupta on 28.07.2011

iii) D.W.-3 - Ashok Kumar on 19.05.2012

iv) D.W.-4- Aditya Kumar on 24.05.2012

14. Nisha Gupta who has been examined as DW-

1, is the Defendant/Appellant herself and in her examination-

in-chief, filed by way of affidavit, she has reiterated the

Statement as made in her written statement. In her cross

examination, she has deposed that after marriage, the

relationship with her husband was good till 2006 and

thereafter, the relationship deteriorated as the husband used to

beat her. She has however deposed that she has been living

separately from her husband since 2008. She lodged a case in

the police station but under the pressure of her husband it was

not acted upon. She has not filed any harassment case in the

Court. She has been living in her sasural house. Her husband

used to come to home but where he lives is not known to her.

One son has left his studies, the second son is studying and the

expenditure of his studies is being met by the family members Patna High Court MA No.5 of 2018 dt. 25-08-2023

of her parental house. She doesn't know the name of the lady

with whom her husband has an intimate relationship but she

can identify her by face. She also does not know the name of

the lady of Rajgir who used to come to his house. She is living

in her Respondent-Husband's house with her children and

husband is not living with her. Whenever the Respondent-

Husband used to beat her, he got her treated and she can show

the documentary proof to prove that her hands were broken.

He has lodged the case before the police but not in the Court.

No other significant statement has been made by her during

deposition.

15. Suresh Prasad Gupta, who has been examined

as DW-2, is also acquainted with both the parties and is the

blood brother of the Defendant-Wife and brother-in-law of the

Plaintiff and in his examination-in-chief, filed by way of

affidavit he has reiterated the Statement as made in the written

statement. Despite the opportunity given to the

Plaintiff/Respondent, he has not been cross examined.

16. Ashok Kumar, who has been examined as Patna High Court MA No.5 of 2018 dt. 25-08-2023

D.W.-3, is also acquainted with both the parties and in his

examination-in-chief, filed by way of affidavit he has

reiterated the Statement as made in the written statement. In

his cross examination, nothing significant has been deposed by

him.

17. Aditya Kumar, aged about 15 years has been

examined as D.W.-4, who is the son of the Appellant and

Respondent and in his examination-in-chief, filed by way of

affidavit, he has reiterated the Statement as made by her

mother in her written statement. In his cross-examination, he

has deposed that prior to 2006, the relationship between his

mother and father was good and his father lives in his own

house and not in a rented house. He has also deposed that his

father does not want to live with his mother and he used to

beat her and even applied electric current to her. It is also

deposed that the expenditure of her mother is met by her

brother. This witness has not deposed any other significant

thing worth notice.

18. After hearing the rival submissions of both the Patna High Court MA No.5 of 2018 dt. 25-08-2023

parties and consideration of evidence on record, Ld. Family

Court allowed the petition of the Respondent/Plaintiff finding

that the Appellant/Defendant-Wife had treated the

Respondent/Plaintiff-Husband with cruelty.

19. Ld. Counsel for the Defendant/Appellant

vehemently submits that Ld. Family Court has failed to

properly appreciate the evidence on record and erroneously

found that the Appellant-Defendant-Wife had treated the

Respondent/Plaintiff-Husband with cruelty, granting decree of

divorce in favour of the Respondent/Plaintiff-Husband. He

refers to evidence on record and submits that as per the

evidence , in fact, it is the Respondent/Plaintiff-Husband, who

has treated the Appellant-Defendant-Wife with cruelty and

the Respondent/Plaintiff-Husband is not entitled to decree of

divorce against the Appellant-Defendant-Wife. A grave

injustice has been done to the Appellant-Defendant-Wife by

the Impugned Judgment. Ld. Counsel for the Respondent,

however, supports the impugned judgment as passed by Ld.

Family Court.

Patna High Court MA No.5 of 2018 dt. 25-08-2023

20. In view of the aforesaid facts and

circumstances and submissions on behalf of both the parties,

the following two points arise for consideration of this Court :

i) Whether the Appellant-Defendant-Wife has treated the Respondent/Plaintiff-Husband with cruelty ?

ii) Whether the Respondent/Plaintiff- Husband is entitled to decree of divorce against the Appellant-Defendant-Wife ?

21. Before we proceed to discuss the points

arising for consideration, it is imperative to see case laws or

authoritative Judicial Pronouncements regarding Burden of

Proof and Standard of Proof in matrimonial cases.

22. Hon'ble Supreme Court has elaborately

discussed the nature of burden of proof in matrimonial cases

in Dr. Narayan Ganesh Dastane Vs. Sucheta Narayan

Dastane as reported in 1975 (2) SCC 326 and law laid down

herein is still holding the field. In para 23 of the case, the

Hon'ble Apex Court has observed that, doubtless, the burden

must lie on the petitioner to establish his or her case for,

ordinarily, the burden lies on the party which affirms a fact,

not on the party which denies it. This principle accords with

commonsense as it is so much easier to prove a positive than a Patna High Court MA No.5 of 2018 dt. 25-08-2023

negative. The petitioner must therefore prove that the

respondent has treated him with cruelty.

23. Coming to the Standard of Proof, we find

that some misconception had arisen on account of the use of

the words "Matrimonial Offences" to describe the misconducts

of Defendants under the Hindu Marriage Act. That is why

before authoritative decision of Hon'ble Full Bench of the

Supreme Court in Dr. Narayan Ganesh Dastane Vs.

Sucheta Narayan Dastane as reported in 1975 (2) SCC 326,

there were conflicting views. As per one view, matrimonial

cases are of civil nature and hence standard of proof in such

cases would be preponderance of probabilities whereas, as per

the another view, proof beyond reasonable doubt should be

standard of proof in matrimonial cases in view of the use of

word "matrimonial offences" in Hindu Marriage Act.

However, in Dr. Narayan Ganesh Dastane case (supra),

Hon'ble Full Bench of the Supreme Court clearly held that

matrimonial cases are civil in nature and preponderance of

probabilities will be standard of proof in trial of Matrimonial

cases under the Hindu Marriage Act, and not proof beyond

reasonable doubt which is applicable in criminal trials.

Hon'ble Supreme Court, in para 24 of Dr. Narayan Ganesh Patna High Court MA No.5 of 2018 dt. 25-08-2023

Dastane case (supra) observed that the normal rule which

governs civil proceedings is that a fact can be said to be

established if it is proved by a preponderance of probabilities.

This is for the reason that under the Evidence Act, Section 3, a

fact is said to be proved when the court either believes it to

exist or considers its existence so probable that a prudent man

ought, under the circumstances of the particular case, to act

upon the supposition that it exists. The belief regarding the

existence of a fact may thus be founded on a balance of

probabilities. A prudent man faced with conflicting

probabilities concerning a fact-situation will act on the

supposition that the fact exists, if on weighing the various

probabilities he finds that the preponderance is in favour of the

existence of the particular fact. As a prudent man, so the court

applies this test for finding whether a fact in issue can be said

to be proved. The first step in this process is to fix the

probabilities, the second to weigh them, though the two may

often intermingle. The impossible is weeded out at the first

stage, the improbable at the second. Within the wide range of

probabilities the court has often a difficult choice to make but

it is this choice which ultimately determines where the

preponderance of probabilities lies. But whether the issue is Patna High Court MA No.5 of 2018 dt. 25-08-2023

one of cruelty or of a loan on a pronote, the test to apply is

whether on a preponderance of probabilities the relevant fact is

proved. In civil cases this, normally, is the standard of proof to

apply for finding whether the burden of proof is discharged.

24. Ruling out application of "proof beyond

reasonable doubt" in matrimonial cases, Hon'ble Supreme

Court, in para 25 of Dr. Narayan Ganesh Dastane case

(supra) has observed that the proof beyond reasonable doubt

is proof by a higher standard which generally governs criminal

trials or trials involving inquiry into issues of a quasi-criminal

nature. A criminal trial involves the liberty of the subject

which may not be taken away on a mere preponderance of

probabilities. If the probabilities are so nicely balanced that a

reasonable, not a vascillating, mind cannot find where the

preponderance lies, a doubt arises regarding the existence of

the fact to be proved and the benefit of such reasonable doubt

goes to the accused. It is wrong to import such considerations

in trials of a purely civil nature. In para 26 of Dr. Narayan

Ganesh Dastane case (supra), Hon'ble Apex Court has

further observed that under the Hindu Marriage Act, nowhere

it is required that the petitioner must prove his case beyond

reasonable doubt. Section 23 confers on the court the power to Patna High Court MA No.5 of 2018 dt. 25-08-2023

pass a decree if it is "satisfied" on matters mentioned in

clauses (a) to (e) of its sub-section of (1). Considering that

proceedings under the Act are essentially of a civil nature, the

word "satisfied" must mean "satisfied on a preponderance of

probabilities" and not "satisfied beyond a reasonable doubt".

Section 23 does not alter the standard of proof in civil cases.

25. Hon'ble Supreme Court, in para 27 of Dr.

Narayan Ganesh Dastane case (supra) has further observed

that the misconception regarding the standard of proof in

matrimonial cases arises perhaps from a loose description of

the respondent's conduct in such cases as constituting a

"matrimonial offence". Acts of a spouse which are calculated

to impair the integrity of a marital union have a social

significance. To marry or not to marry and if so whom, may

well be a private affair but the freedom to break a matrimonial

tie is not. The society has a stake in the institution of marriage

and therefore the erring spouse is treated not as a mere

defaulter but as an offender. But this social philosophy, though

it may have a bearing on the need to have the clearest proof of

an allegation before it is accepted as a ground for the

dissolution of a marriage, has no bearing on the standard of

proof in matrimonial cases.

Patna High Court MA No.5 of 2018 dt. 25-08-2023

26. Hon'ble Apex Court in para 10 of Shobha

Rani Vs. Madhukar Reddi as reported in AIR 1988 SC 121

has also observed that considering that proceedings under the

Hindu Marriage Act is essentially of a civil nature, the word

'satisfied' must mean 'satisfied on a preponderance of

probabilities' and not 'satisfied beyond a reasonable doubt'.

Section 23 of the Act does not alter the standard of proof in

civil cases.

27. Hon'ble Supreme Court in para 10 of A.

Jayachandra Vs. Aneel Kaur as reported in 2005(2) SCC 22

has observed that 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 Patna High Court MA No.5 of 2018 dt. 25-08-2023

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.

28. Hon'ble Kerala High Court, after referring

to A. Jayachandra case (supra), in para 19 of Mohandas

Panicker Vs. Dakshayani as reported in 2013 SCC Online

Ker 24493 has observed that the principles laid down in the

above decisions reiterate that in civil cases, preponderance of

probabilities is the standard to be adopted to prove the case.

No doubt, matrimonial cases are civil proceedings and the

Court can act upon preponderance of probabilities, especially

in adultery cases, since it is difficult to get direct evidence.

29. Now let us consider the points which are

formulated for consideration.

                                           Point No.1

                             30.      Before       considering   whether     the

Respondent/Wife has committed cruelty against the Appellant

or not, it would be imperative to see what is the statutory

provisions and case laws on the subject.

31. Cruelty has been provided as one of the Patna High Court MA No.5 of 2018 dt. 25-08-2023

grounds for divorce under Section 13(1)(i-a) of Hindu

Marriage Act. As per the provisions, the marriage can be

dissolved by decree of divorce on a petition presented by

either of the parties, if the other party has treated the petitioner

with cruelty.

32. However, the word 'cruelty' used in Section

13(1)(i-a) of Hindu Marriage Act has not been defined under

the Hindu Marriage Act. But the word has been interpreted by

Hon'ble Supreme Court on several occasions.

33. The Hon'ble Supreme Court, in para 4 of

Sobha Rani Vs. Madhukar Reddi as reported in AIR 1988

SC 121, has observed that 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 in the mind of Patna High Court MA No.5 of 2018 dt. 25-08-2023

the spouse. Whether it caused reasonable apprehension that it

would be harmful or injurious to live with the other.

Ultimately, it is a matter of inference to be drawn by taking

into account the nature of the conduct and its effect on the

complaining spouse. There may, however, be cases where the

conduct complained of itself is bad enough and per se

unlawful or illegal. Then the impact or the injurious effect on

the other spouse need not be enquired into or considered. In

such cases, the cruelty will be established if the conduct itself

is proved or admitted.

34. The Hon'ble Apex Court in para 5 of

Shobha Rani case (supra) has further observed that it will be

necessary to bear in mind that there has been 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 Patna High Court MA No.5 of 2018 dt. 25-08-2023

upon their culture and human values to which they attach

importance. The Judges and lawyers, therefore, should not

import their own notions of life. They may not go in parallel

with them. There may be a generation gap between them and

the parties. It would be better if they keep aside their customs

and manners. It would be also better if they less depend upon

precedents. Each case may be different. They 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 realm of cruelty.

35. The Hon'ble Supreme Court, in para 17 of the

Shobha Rani case (supra) has also observed that the context

and the set up in which the word 'cruelty' has been used in the

section, it appears that intention is not a necessary element in

cruelty. That word has to be understood in the ordinary sense of

the term in matrimonial affairs. If the intention to harm, harass

or hurt could be inferred by the nature of the conduct or brutal

act complained of, cruelty could be easily established. But the

absence of intention should not make any difference in the case, Patna High Court MA No.5 of 2018 dt. 25-08-2023

if by ordinary sense in human affairs, that act complained of

could otherwise be regarded as cruelty. The relief to the party

cannot be denied on the ground that there has been no deliberate

or wilful ill-treatment.

36. The Hon'ble Apex Court in Gananath

Pattnaik Vs. State of Orissa as reported in 2002(2) SCC 619

has observed that the concept of cruelty and its effect varies

from individual to individual, also depending upon the social

and economic status to which such person belongs. "Cruelty"

for the purposes of constituting the offence under the aforesaid

section need not be physical. Even mental torture or abnormal

behaviour may amount to cruelty and harassment in a given

case.

37. The Hon'ble Supreme Court in para 10 of

A. Jayachandra Vs. Aneel Kaur as reported in 2005(2) SCC

22 has observed that 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 Patna High Court MA No.5 of 2018 dt. 25-08-2023

values, status, environment in which they live. Cruelty, includes

mental cruelty, which falls within the purview of a matrimonial

wrong. Cruelty need not be physical. If from the conduct of his

spouse same is established and/or an inference can be

legitimately drawn that the treatment of the spouse is such that it

causes an apprehension in the mind of the other spouse, about

his or her mental welfare then this conduct amounts to cruelty.

38. The Supreme Court in para 12 of A.

Jayachandra case (supra) has further observed that 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 Patna High Court MA No.5 of 2018 dt. 25-08-2023

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.

39. The Supreme Court in para 13 of A.

Jayachandra case (supra) has further observed that 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 Patna High Court MA No.5 of 2018 dt. 25-08-2023

whether the conduct was such that no reasonable person would

tolerate it. It has to be considered whether the complainant

should be called upon a 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.

40. In Harbhajan Singh Monga Vs. Amarjeet

Kaur as reported in 1985 SCC OnLine MP 83, Hon'ble

Madhya Pradesh High Court has held that even threat to

commit suicide to falsely implicate the other spouse and his/her

family members in criminal case also amounts to cruelty.

41. In Smt. Uma Wanti v. Arjan Dev as reported

in 1995 SCC OnLine P & H 56, Hon'ble Punjab and Haryan

High Court has held that even peculiar behaviour of spouse on

account of unsoundness of of mind or otherwise also amounts

to cruelty. Hon'ble Court had held that day to day behaviour of

the appellant was such as to disturb the mental peace and

harmony of the respondent which definitely amounted to legal Patna High Court MA No.5 of 2018 dt. 25-08-2023

cruelty. She may not be of the unsound mind, but her peculiar

ways of behaviour proved by the respondent are sufficient to

constitute that legal cruelty. The husband could not live with

peace in the company of the appellant. Peace was always

disturbed due to her peculiar ways of behaviour, and thus he

cannot be disbelieved that her behaviour was cruel to him.

42. In Mrs. Rita Nijhawan Vs. Mr. Bal Krishna

Nijhawan as reported in ILR (1973) I Delhi 944 , Hon'ble

Delhi High Court has held that denial of sexual intercourse

either on account of impotence or otherwise amounts to cruelty

to the aggrieved spouse. Hon'ble Court also observed that sex

is the foundation of marriage and without a vigorous and

harmonious sexual activity it would be impossible for any

marriage to continue for long. It cannot be denied that the sexual

activity in marriage has an extremely favourable influence on a

woman's mind and body. The result being that if she does not

get proper sexual satisfaction it will lead to depression and

frustration. It has been said that the sexual relations when happy

and harmonious vivifies woman's brain, develops her character

and trebles her vitality. It must be recognised that nothing is

more fatal to marriage than disappointments in sexual

intercourse.

Patna High Court MA No.5 of 2018 dt. 25-08-2023

43. Hon'ble Court in Mrs. Rita Nijhawan case

(supra) further observed that the law is well settled that if either

of the party to a marriage being of healthy physical capacity

refuse to have sexual intercourse, the same would amount to

cruelty entitling the other party to a decree. In our opinion it

would not make any difference in law whether denial of sexual

intercourse is the result of sexual weakness of the respondent

disabling him from having a sexual union with the appellant, or

it is because of any wilful refusal by the respondent; this is

because in either case the result is the same namely frustration

and misery to the appellant due to denial of normal sexual life

and hence cruelty.

44. The Hon'ble Supreme Court, in para 99 of the

Samar Ghosh Vs. Jaya Ghosh as reported in (2007) 4 SCC

511, has observed, after referring to and discussing several

judgments on the point of cruelty, that human mind is

extremely complex and human behaviour is equally

complicated. Similarly, human ingenuity has no bound,

therefore, to assimilate the entire human behaviour in one

definition is almost 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, Patna High Court MA No.5 of 2018 dt. 25-08-2023

level of sensitivity, educational, family and cultural background,

financial position, social status, customs, traditions, religious

beliefs, human values and their value system.

45. The Hon'ble Supreme Court has further

observed in Samar Ghosh case (supra) 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. The Hon'ble Court in para 100 has further observed

that 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.

46. It has been further observed by Hon'ble

Supreme Court in para 101 of the Samar Ghosh case (supra)

that no uniform standard can ever be laid down for guidance.

However, Hon'ble Court thought it appropriate to enumerate Patna High Court MA No.5 of 2018 dt. 25-08-2023

some instances of human behaviour which may be relevant in

dealing with the cases of "mental cruelty" with caution that such

instances are only illustrative and not exhaustive. The instances

enumerated by Hon'ble Apex Court are as follows :

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

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

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

iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

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

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

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

Patna High Court MA No.5 of 2018 dt. 25-08-2023

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

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

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

xi) If a husband submits himself for an operation of 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 Patna High Court MA No.5 of 2018 dt. 25-08-2023

the parties. In such like situations, it may lead to mental cruelty."

47. The Hon'ble Supreme Court, in para 18 of

Ravi Kumar Vs. Jumla Devi as reported in 2010 SCCR 265,

observed that 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 different

form. At times, it may be just an attitude or an approach. Silence

in some situations may amount to cruelty. Therefore, cruelty in

matrimonial behaviour defies any definition and its category can

never be closed. Whether 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 pre-determined 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.

48. In para 10 of Ramchander Vs. Ananta as

reported in 2015(11)SCC 539, Hon'ble Supreme Court has

observed that cruelty for the purpose of Section 13(1)(i-a) is to

be taken as a behaviour by one spouse towards the other, which Patna High Court MA No.5 of 2018 dt. 25-08-2023

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.

49. It has further been observed by Hon'ble Apex

Court in Ramchander case (Supra) that instances of cruelty are

not to be taken in isolation. It is the cumulative effect of the

facts and circumstances emerging from the evidence on record

which should be taken into consideration to draw a fair

inference whether the plaintiff has been subjected to mental

cruelty due to conduct of the other spouse.

50. In Vinita Saxena v. Pankaj Pandit, as

reported in (2006) 3 SCC 778 Hon'ble Supreme Court has

observed in para 31 that it is settled by a catena of decisions that

mental cruelty can cause even more serious injury than the

physical harm and create in the mind of the injured appellant

such apprehension as is contemplated in the section. It is to be

determined on the whole facts of the case and the matrimonial

relations between the spouses. To amount to cruelty, there must

be such wilful treatment of the party which caused suffering in

body or mind either as an actual fact or by way of apprehension

in such a manner as to render the continued living together of

spouses harmful or injurious having regard to the circumstances Patna High Court MA No.5 of 2018 dt. 25-08-2023

of the case.

51. Hon'ble Supreme Court has further observed

in Para-32 of Vinita Saxena case (supra) that the word

"cruelty" has not been defined and 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 and one which is adversely affecting the

other. The cruelty may be mental or physical, intentional or

unintentional. There may be cases where the conduct

complained of itself is bad enough and per se unlawful or

illegal. Then the impact or the injurious effect on the other

spouse need not be enquired into or considered. In such cases,

the cruelty will be established if the conduct itself is proved or

admitted.

52. Hon'ble Supreme Court has further observed

in Para-36 of the Vinita Saxena case (supra) that the legal

concept of cruelty which is not defined by the statute is

generally described as conduct of such character as to have

caused danger to life, limb or health (bodily and mental) or to

give rise to reasonable apprehension of such danger. The general

rule in all questions of cruelty is that the whole matrimonial

relation must be considered, that rule is of a special value when Patna High Court MA No.5 of 2018 dt. 25-08-2023

the cruelty consists not of violent act but of injurious

reproaches, complaints. accusations or taunts. It may be mental

such as indifference and frigidity towards the wife, denial of a

company to her, hatred and abhorrence for the wife, or physical,

like acts of violence and abstinence from sexual intercourse

without reasonable cause. It must be proved that one partner in

the marriage, however mindless of the consequences, has

behaved in a way which the other spouse could not in the

circumstances be called upon to endure, and that misconduct has

caused injury to health or a reasonable apprehension of such

injury. There are two sides to be considered in case of cruelty.

From the appellant's side, ought this appellant to be called on to

endure the conduct? From the respondent's side, was this

conduct excusable? The court has then to decide whether the

sum total of the reprehensible conduct was cruel. That depends

on whether the cumulative conduct was sufficiently serious to

say that from a reasonable person's point of view after a

consideration of any excuse which the respondent might have in

the circumstances, the conduct is such that the petitioner ought

not be called upon to endure.

53. Hon'ble Supreme Court has further observed

in Para-37 of the Vinita Saxena case (supra) what constitutes Patna High Court MA No.5 of 2018 dt. 25-08-2023

the required mental cruelty for the purposes of the said

provision, will not depend upon the numerical count of such

incidents or only on the continuous course of such conduct but

really go by the intensity, gravity and stigmatic impact of it

when meted out even once and the deleterious effect of it on the

mental attitude, necessary for maintaining a conducive

matrimonial home.

54. Hon'ble Supreme Court has further observed

in Para-38 of the Vinita Saxena case (supra) that if the taunts,

complaints and reproaches are of ordinary nature only, the court

perhaps need consider the further question as to whether their

continuance or persistence over a period of time render, what

normally would, otherwise, not be so serious an act to be so

injurious and painful as to make the spouse charged with them

genuinely and reasonably conclude that the maintenance of

matrimonial home is not possible any longer.

55. Now, coming to the case at hand, we find that

admittedly both the parties are married on 10.07.1987 and out of

the wedlock, two sons were born. The first son, Narendra

Bharati was born on 16.05.1991 and the second son, Aditya

Kumar was born on 15.08.1998. As per allegation, the nature of

the Appellant/Defendant-Wife got completely changed after the Patna High Court MA No.5 of 2018 dt. 25-08-2023

birth of the second son and hence, divorce petition was filed on

29.07.2008 pleading following facts claimed as cruelty

committed by the Appellant/Defendant-Wife against the

Husband/Plaintiff :

i) The Appellant/Wife was not ready to prepare food for him and she always used to quarrel with him and also used to force him to live at the upper floor of the house and the wife was living at the ground floor having no concern with each other.

ii) The wife always used to threaten him to lodge criminal case against him.

(iii) She sold wheat, rice and other grains from his field and also sold costly utensils and ornaments behind his back.

(iv) The wife threatened to kill him with the help of anti-social elements.

(v) On several occasions, the husband fell seriously ill and admitted to Prashant Clinic at Bharawpar, but the wife never came to see him.

56. The Defendant/Wife in her written statement

has denied all the allegations made in the petition and

vehemently pleaded that the husband is an agent in insurance

business and an active member of RSS and BJP and he

consequently developed intimacy with some beautiful ladies, Patna High Court MA No.5 of 2018 dt. 25-08-2023

one of them is from Rajgir. She has further pleaded that the

lady from Rajgir was frequently taken by the Husband to his

house and on objection raised by the Appellant/Defendant-

Wife, her husband used to beat her. It is also pleaded by her

that the Husband became indifferent towards her and stopped

taking interest in her. However, whenever he came to her, she

welcomed him and it is wrong to say that there is no

cohabitation for the last ten years. She has further pleaded that

she does not know the name of the lady with whom her

husband has intimacy but she knows her face. She has also

claimed that the divorce petition has been filed with an intent

to marry the lady from Rajgir. She has further averred that she

is a pardanashi lady and she does not go outside except on

occasions of offering puja in temple. She has also averred that

she is always ready to live with him and the fact is that the

husband wants to get rid of her on account of illicit

relationship with other lady. It is also averred that the husband

himself shifted to other floor of the house and did not allow

the wife and sons to go to the floor where he used to live and

he frequently resides away from home and whenever he comes

he comes late at night.

57. Coming to the evidence adduced by the Patna High Court MA No.5 of 2018 dt. 25-08-2023

Plaintiff/Husband, who is the Respondent herein, we find that

five witnesses, including himself, have been examined in

support of the divorce petition.

58. P.W.-1 - Dilip Kumar Singh was examined on

14.07.2009 and we find that in his cross examination, he has

deposed that he had gone to the house of the

Plaintiff/Respondent eight years back and he had visited his

house several times. Here, it is relevant to point out that as per

the divorce petition, marriage ran into rough weather since

1999, but as per the claim that he has visited the house of the

Plaintiff eight years back, it means that he has visited in the

year 2001. As such, he is not in a position to say what

happened prior to 2001 between the parties. Even otherwise,

this witness is outsider and the Appellant Defendant-wife is a

Pardanaseen lady and there appears no occasion for this

witness to interact with the Appellant-Defendant and he cannot

be in a position to say about the nature of the Appellant-

Defendant, hence his evidence regarding nature of Appellant-

Defendant and her family affairs has hardly any value.

59. P.W.-2 - Parasnath was examined on

15.02.2010. He is also an outsider and he also appears to have Patna High Court MA No.5 of 2018 dt. 25-08-2023

hardly any occasion to see the family affairs of the Appellant-

Defendant-wife, who is a Pardanaseen lady. His evidence is

liable to be discarded in view of his deposition during cross-

examination, as per which, he does not even know whether the

parties were living in their own house, nor he was knowing the

names of people living in the adjacent houses of the parties to

the marriage. He was also not aware whether the parties are

separate in mess.

60. P.W.-3- Parashuram Kumar was examined on

24.02.2010. In his cross examination he has deposed that the

mother of the Respondent/Plaintiff is living separately from

him with her other son, Shivratan Prasad Gupta. He has also

deposed in his cross examination that the

Respondent/Plaintiff-Husband is presently living away from

his home and he is not going to home for the last five years

and there is no relationship of husband and wife between the

parties.

61. P.W.-4 - Vinod Kumar was examined on

15.03.2010. He has deposed in his cross examination that the

Respondent/Plaintiff is a member of RSS and presently he is

living in the office of the RSS.

Patna High Court MA No.5 of 2018 dt. 25-08-2023

62. The Plaintiff/Respondent has examined

himself as P.W.-5. He, in his cross examination, has deposed

that the wife is still living in his house along with the children.

However, he does not live with them and he is residing in the

RSS office. He has also deposed that for about ten years, he is

not on talking terms with the wife, which means that he is not

on talking terms with the wife since the year 2000 because he

was examined on 26.03.2010.

63. The Appellant/Defendant-Wife has been

examined as D.W.-1 and in her cross examination she has

deposed that the relationship with her husband was good till

2006. She has further deposed that she is living in her

matrimonial house with her children and her husband is not

living with her. She has also deposed that she does not know

the name of the lady with whom her husband has illicit

relationship, but she can identify her by face.

64. D.W.-2 - Suresh Prasad Gupta and D.W.-3

Ashok Kumar have not made any significant statement during

their depositions.

65. D.W.-4 - Aditya Kumar is very important

witness, because he is the younger son of the Appellant and Patna High Court MA No.5 of 2018 dt. 25-08-2023

the Respondent. In his cross examination, he has deposed that

prior to 2006, the relationship between his mother and father

was good. He has further deposed that his father does not want

to live with her mother and he also used to beat her and even

applied electric current to her.

66. From the aforesaid evidence, it clearly

transpires that as per the evidence of the Respondent-Plaintiff-

husband, marriage started running into rough weather since

1999, but the divorce petition was filed in the year 2008, after

a long gap of nine years. If the alleged cruelty, committed on

behalf of the wife, was true, it is not explained why the

Respondent-Plaintiff-husband waited for nine years to file the

divorce petition on the ground of cruelty. This circumstance

goes against him making his claim of cruelty allegedly

committed by the Appellant-Defendant-wife non-believable.

Moreover, the evidence of DW-4, who is a son of the parties,

that up to 2006, the relationship between his mother and father

was good and his father did not want to live with his mother

and he used to beat her and even applied electric current to her,

renders the case of the Plaintiff/Respondent further

disbelievable.

Patna High Court MA No.5 of 2018 dt. 25-08-2023

67. In view of the evidence that the relation

between the Husband and Wife was good prior to the year

2006, the case of Husband that since 1999 the Wife/Appellant

used to quarrel with him and was not ready to cook food for

him falls on the ground.

68. We further find that as per evidence of both

the parties that the Appellant-Defendant-wife is still living in

her matrimonial house along with her children and it is the

husband, who left his house and is living in the office of RSS.

We also find that the wife has never refused cohabitation, it is

the husband who had stopped taking interest in her and he is

not making efforts for cohabitation, because he has been living

separately from her. The Appellant-Defendant-wife has all

along maintained that she wants to live with her husband and

she always welcomed him whenever he comes home and she

has never refused cohabitation. She has also deposed that it is

wrong to say that before filing the divorce petition in 2008,

there was no conjugal relationship between the husband and

wife. It also appears that it is the husband, who does not have

any concern for his wife rather than wife is not having concern

for the husband. It has also come in evidence that the mother

of the Respondent/Husband lives separately from him as she Patna High Court MA No.5 of 2018 dt. 25-08-2023

lives with her second son. As such, there is no question of any

misconduct by the Wife/Appellant to her.

69. In regard to the allegation that wife used to

threat her husband to lodge criminal case, we find that there is

no cogent evidence on record and even otherwise if any

offence is committed against anybody, the victim has every

right to initiate criminal proceeding and as per evidence, we

find that the Respondent-Plaintiff-husband used to beat his

wife when she opposed his illicit relationship with other lady.

Even the son of the parties who has been examined as D.W.-4,

has deposed that his father used to beat his mother and even he

applied electric current to her. As such, threat to exercise legal

right cannot be held to be cruelty. It is also pertinent to point

out that it is not a case of the husband/Plaintiff that the

Defendant/Wife used to extend threat to lodge false criminal

case or she has lodged any false criminal case.

70. As far as, allegation of selling wheat, rice and

other grains, utensils and ornaments by the Appellant-

Defendant-wife is concerned, we find that there is no such

cogent evidence in support of this allegation. Even otherwise,

such activity cannot be held to be cruelty to the husband. Patna High Court MA No.5 of 2018 dt. 25-08-2023

Selling grains and her ornaments cannot amount to cruelty.

71. As far as allegation that wife threatened her

husband to kill with the help of anti-social elements is

concerned, there is no cogent evidence on record to prove such

allegation. The Appellant-Defendant-wife is a Pardanaseen

lady and obviously she cannot have any contact with any anti-

social elements or criminals. Even otherwise, no specific

instance with reference to date and place of such threatening

has been given in his evidence. As far as allegation of

Respondent-Plaintiff-husband that on several occasions he fell

ill and admitted in Prashant clinic at Bharaoper, but the wife

never came to see him is concerned, again we find that no

evidence is on record to prove such allegation. The

Respondent-Plaintiff-husband has not pleaded or deposed the

dates and nature of his illness and when he was admitted in

hospital He has also not proved that his wife was aware of his

illness and she failed to visit him.

72. As such, in totality of the evidence on record,

we find that no instance has been proved by the Respondent-

Plaintiff-husband, which may be construed as cruelty in the

strict sense of the term as provided under Section 13 of the Patna High Court MA No.5 of 2018 dt. 25-08-2023

Hindu Marriage Act, as we have already seen what the cruelty

under the Act means. The Husband/Plaintiff, who is

Respondent herein, has failed to prove any misconduct on the

part of the Appellant-Wife which could be considered grave

and weighty giving reasonable apprehension to him of such a

danger which could make it unsafe for him to continue the

matrimonial life with the Appellant Wife. There may have

been ordinary wear and tear in the matrimonial life of the

parties, but certainly no cruelty is found to have been

committed by the Appellant-Wife towards the

Husband/Respondent. In fact, cruelty appears to have been

committed other way round. Hence, this point is decided

against the Respondent-Plaintiff and in favour of the

Appellant-Defendant.

Point No.2

73. In the light of the finding in regard to point

no.1, needless to say that the Respondent-Plaintiff-husband is

not entitled to decree of divorce against the Appellant-

Defendant-wife, because he has failed to prove the ground of

cruelty to get decree of divorce against the Appellant-

Defendant-wife.

Patna High Court MA No.5 of 2018 dt. 25-08-2023

74. In view of the aforesaid findings, we are of

considered opinion that the impugned judgment is not

sustainable in the eye of law. Hence, the present Miscellaneous

Appeal is allowed setting aside the impugned judgement dated

07.10.2017, passed by Ld. Principal Judge, Family Court,

Nalanda at Biharsharif in Divorce Case No. 72 of 2008.

However, both the parties shall bear their own costs. Let the

decree be drawn accordingly.

75. The Registrar General is directed to circulate

a copy of this judgment amongst all the Presiding Officers of

the Family Courts and send a copy to the Director of Bihar

Judicial Academy.

                                                  (Jitendra Kumar, J)



Amrendra/-                                        (P. B. Bajanthri, J)
AFR/NAFR                AFR
CAV DATE                01.08.2023
Uploading Date          25.08.2023