Telangana High Court
D. Narsimha ,Inarsimlu vs Smt D Anita Vaishnavi on 21 June, 2024
HON'BLE SMT. JUSTICE MOUSHUMI BHATTACHARYA
AND
HON'BLE SMT JUSTICE M.G.PRIYADARSINI
C.M.A. No.68 OF 2022
JUDGMENT:
(Per Hon'ble. Justice Moushumi Bhattacharya)
The appeal arises out of an order dated 02.11.2021 passed
by the learned Principal Senior Civil Judge at Mahabubnagar, in
H.M.O.P.No.20 of 2018. The appellant's petition for divorce
under Section 13 (1) (i-a) and (i-b) of the Hindu Marriage Act,
1955 (for cruelty and desertion) was dismissed by the Trial Court.
2. A brief factual background to the present appeal follows:
2.1 The appellant and the respondent were married on
01.12.2010 as per Hindu Rites and Customs at Chinna Gollapally
Village, Shamshabad Mandal, Ranga Reddy District. The
appellant and the respondent experienced difficulties in their
marriage from 04.12.2010. The respondent left the appellant for
her parents' house on 01.11.2011. The appellant and the
respondent had a child on 13.09.2011. The appellant and the
respondent continued to have differences and the respondent
filed a complaint to the Station House Officer, Shamshabad, on
11.07.2012. The appellant and his family members obtained
anticipatory bail from the Court of the Metropolitan Sessions
Judge at Cyberabad on 25.08.2012. The appellant filed a case for
divorce vide O.P.No.1353 of 2012 in the Family Court at Ranga
Reddy District but did not pursue the case.
2.2 The respondent filed a total of 5 criminal cases against the
appellant being Crime Nos.219 of 2012, 918 of 2013, 164 of 2013,
290 of 2015 and 156 of 2021 and D.V.C.No.11 of 2016 and D.V.C.
Appeal No.862 of 2019. The appellant suffered imprisonment in
C.C.No.14 of 2014 and C.C.No.517 of 2014 which were registered
under Section 498-A of The Indian Penal Code, 1860 on the basis
of the complaint lodged by the respondent. The respondent came
to live with the appellant for a few days in May, 2015 but left the
appellant's home soon thereafter and filed more criminal cases
against the appellant. The Principal Junior Civil Judge-cum-XIV
Additional Chief Metropolitan Magistrate at Cyberabad vide
order dated 16.11.2021 dismissed C.C.No.227 of 2016 filed by the
respondent against the appellant.
3. The learned Trial Court vide the impugned order dated
02.11.2021 dismissed the appellant's petition for divorce on the
ground that the appellant had failed to establish a case of cruelty
for grant of divorce. The Trial Court was also of the view that
there was insufficient material to prove the fact of desertion or
any intention on the part of the respondent to bring the
cohabitation to an end. The Trial Court laid emphasis on the
respondent coming to live with the appellant for a few days
which according to the Trial Court was found to be reason
enough for discounting the earlier criminal cases filed by the
respondent against the appellant.
4. The impugned order, however, specifically records that the
parties need to be protected from unending litigation and that the
respondent had filed multiple criminal cases against the
appellant.
5. Counsel appearing for the appellant submits that the
respondent has caused physical and mental cruelty to the
appellant by filing one criminal case after another against the
appellant. Counsel further submits that the respondent deserted
the appellant by leaving the matrimonial home in 2011 and that
the respondent subsequently came to live with the appellant in
May, 2015 only for a few days after which the respondent filed
two more criminal cases. Counsel submits that the Trial Court
ought to have allowed the appellant's petition for divorce.
6. Counsel appearing for the respondent does not dispute the
fact of the respondent filing 5 criminal complaints against the
appellant. The only point raised by counsel is that the appellant
will not maintain the respondent if the appellant is granted a
decree of divorce.
7. It is important to see the law relevant to the issue at hand
since scores of cases are being filed nowadays under Section 13(1)
of the Act on one or more of the grounds under the said provision
i.e., dissolution of marriage by a decree of divorce.
8. The most common grounds for divorce are of "cruelty" or
"desertion". These are found under Clauses (i-a) and (i-b) of
Section 13 (1) of the Act and are set out below:
"Section 13:
(1) Any marriage solemnized, whether before or
after the commencement of this 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) has, after the solemnization of the marriage,
had voluntary sexual intercourse with any
person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous
period of not less than two years immediately
preceding the presentation of the petition".
9. The expression "cruelty" in Section 13(1)(i-a) of the Act has
not been defined in the Act but has received judicial
interpretation to mean human conduct or human behaviour
within the contours of marital duties and obligations where such
conduct adversely affects the other party and includes mental
and physical cruelty which is both intentional and unintentional:
Vinita Saxena v. Pankaj Pandit 1. A long period of continuous
separation and scant regard for the feelings and emotions of the
other party has been interpreted by the Supreme Court as mental
cruelty: Samar Ghosh v. Jaya Ghosh 2.
(2006) 3 SCC 778
(2007) 4 SCC 511
10. The meaning of cruelty has however undergone a more
inclusive definition with the passage of years. Cruelty has an
inseparable nexus with human conduct and hinges on the social
milieu to which the parties belong, their way of life and
temperament and emotions which determine not only the
benchmark but also the gradation of cruel conduct. Any
treatment which causes a reasonable apprehension in the mind of
the other spouse that it would be harmful to reside with the other
spouse would amount to cruelty as a ground for divorce:
Vishwanath Agarwal v. Sarla Vishwanath Agarwal 3. Refusing to
sever ties can also constitute mental cruelty where there has
already been a long period of separation between the husband
and wife: K. Srinivas Rao v. D.A. Deepa 4.
11. In essence, whether the conduct inflicted by one party on
the other clears the threshold of cruelty under Section 13(1)(i-a) of
the Act is wholly fact-dependent. In fact, there is no threshold
test at all. The concept of cruelty is social milieu-dependent
where the upbringing, level of education, sensitivity, financial
(2012) 7 SCC 288
(2013) 5 SCC 226
position, social status, religious beliefs and cultural backgrounds
of the parties would set the standard of whether the conduct
complained of would be unmitigated cruel behaviour. The
degree of tolerance to the conduct complained of would also
depend on the outlook, experience and exposure of the
complainant as well as the perpetrator. Any act of damage to
reputation, social standing or work prospects by one spouse to
the other would fall within the term "cruelty". It may not be too
far-fetched to say-hesitantly-that depriving a spouse from being
on Facebook and Instagram may also amount to cruelty!
12. The absence of a specific definition of 'cruelty' encourages
a revisit of the requirement to prove cruel treatment as a ground
for divorce under Section 13(1)(i-a) of the Act. The concept of
marital duties and obligations has changed at every level with
changes in social structures. Family set-ups have been
transformed with financial independence and greater equality in
relationships. A marriage is more of a voluntary bond these days
and less of a social compulsion. The law must move with the
times.
13. In Joydeep Majumdar v. Bharti Jaiswal Majumdar 5, the
respondent made defamatory complaints to the appellant's
superiors in the Army which resulted in a Court of Enquiry being
held by the Army against the appellant. In Rani Narasimha Sastry
v. Rani Suneela Rani 6, the respondent filed proceedings under
Section 498-A of the I.P.C. for which the appellant had to
undergo trial. In Mangayakarasi v. M. Yuvaraj 7, the husband was
exposed to criminal litigation and the couple had also been living
separately for a long period of time. In Raj Talreja v. Kavita
Talreja 8, the wife filed several complaints against the husband for
assault and wrongful restraint. In Narendra v.
K. Meena 9, the respondent cast serious aspersions against the
character of the appellant with regard to the appellant having an
extramarital affair. In K. Srinivas v. K.Sunitha 10, the respondent
filed a criminal complaint against the appellant and his family
members for attempt to murder. In Sivasankaran v. Santhimeenal 11,
the respondent made representations to the college authorities
(2021) 3 SCC 742
(2020) 18 SCC 247
(2020) 3 SCC 786
(2017) 14 SCC 194
(2016) 9 SCC 455
(2014) 16 SCC 34
(2022) 15 SCC 742
seeking initiation of disciplinary proceedings against the
appellant. In K. Srinivas Rao v. D.A. Deepa 12, the Supreme Court
held that repeated filing of cases would amount to mental
cruelty. The Supreme Court found cruelty in all these cases.
14. The above instances show that mental cruelty cannot be
defined within a straightjacket formula. What may be seen as
mental cruelty by one may be well perceived as behaviour which
is irritating or unwelcome, but not cruel. The fact that two
persons cannot imagine a life together any more should be seen
as sufficient ground to dissolve the marriage and grant a decree
of divorce. A party being held to the stranglehold of Section 13(1)
of the Act is a dated approach and one that is no longer in sync
with the times. A petition for divorce should not only be tethered
to the grounds under Section 13(1) of the Act. Section 13(1) of the
Act may be seen as supplementing a case for divorce where the
marriage has otherwise become unworkable.
15. The bottomline is that marital ties cannot be forced on
persons who are unwilling to make the marriage work. The
(2013) 5 SCC 226
Court must however be convinced that the rupture of
matrimonial ties is complete and irreversible and is not an
unilateral move on the part of one of the partners for collateral
motives. The distinction between Section 13(1) - 'Divorce' and
Section 13-B - 'Divorce by mutual consent' needs to be borne in
mind. While the former contemplates either the wife or the
husband seeking divorce, Section 13-B of the Act is by mutual
consent. However, there may be cases where a case under
Section 13(1) of the Act becomes one under Section 13-B of the
Act where both parties evince an intention to live apart from the
other. Forcing the parties to cohabit may result in greater
injustice to the respondent in a petition under Section 13(1) of the
Act.
16. The obliteration of marital ties is entirely for the persons in
the marriage and upon them to assess and resolve in the best way
they think fit. The Court has a limited role in the whole affair
and should not act as an executioner (in the sense of a hangman)
or a counsellor to compel the parties to continue living as wife
and husband, particularly where the meeting of minds between
them has irrevocably ended. It is certainly not the Court's work
to ferret out faultlines in the evidence in negation of cruelty in an
altruistic zeal for preserving the marriage. This kind of exercise is
unwarranted and pointless.
17. It is relevant to state that the Trial Court also held that the
brief "reunion" of the parties in May, 2015 precluded the
appellant from re-agitating events prior to the respondent coming
to live with the appellant as it indicated forgiveness on the part of
the appellant. We are unable to agree with the reasoning and the
presumption.
18. Condonation and forgiveness means restoration of the
offending spouse to the same position as he/she was before the
offence was committed. The evidence must also point to this
direction: Dr.N.G. Dastane v. Mrs. S. Dastane 13. Forgiveness
would be a misnomer in a case where the wife stays with the
husband for 2 months and then leaves the matrimonial home and
lodges an F.I.R. against the husband and his family members for
offences punishable under Section 498-A of the I.P.C. and the
(1975) 2 SCC 326
Dowry Prohibition Act: Malathi Ravi, M.D v. B.V. Ravi, M.D. 14.
The Supreme Court in that case held that the husband had been
treated with mental cruelty and affirmed the decree of divorce
granted by the High Court.
19. Marriage is much more than an exchange of vows or a
single ceremony. It requires building of a shared home brick-by-
brick cemented by a continuing wish to live a life together. Every
marriage has a core and a foundation holding the union of two
persons together. The bedrock of the union disintegrates when
the married persons intend to break away from the union. It
would be unnatural to reject a petition for divorce where the
evidence led by both the parties show that the core of the
marriage has crumbled beyond restoration. What is evident from
the decisions cited is that cruelty is just one of the splinters of a
collapsing structure where the substratum of the marriage has
broken down in a way in which the structure cannot be
preserved or re-built. Cruelty, desertion, insanity are but a few of
the grounds which may form the reason for a step in that
direction. The Courts should put a quietus to such matters.
(2014) 7 Supreme Court Cases 640
20. In the present case, it is undisputed that the respondent has
initiated 7 proceedings against the appellant including 5 criminal
cases under Section 498-A of the I.P.C. and The Dowry
Prohibition Act, 1961. It is also undisputed that S.T.C.No.5 of
2014 filed by the respondent against the appellant and his family
members was dismissed on 16.07.2014 and C.C.No.14 of 2014
filed under Section 498-A of the I.P.C. was also dismissed on
25.08.2015. Further, the Family Court at Mahabubnagar dismissed
the complaint filed by the petitioner arising from F.I.R. No.136 of
2021 on 16.03.2021. Finally, C.C.No.227 of 2016 was also
dismissed by the Principal Junior Civil Judge-cum-XIV
Additional Metropolitan Magistrate, Cyberabad at Rajendranagar
on 16.11.2021.
21. The Metropolitan Magistrate Court at Cyberabad, Rajendra
Nagar, specifically found that there was no evidence given by the
appellant using physical/mental cruelty or harassing the
respondent. The Court also came to the finding that the
prosecution was unable to prove the main ingredient under
Section 498-A of the I.P.C. and that none of the relevant witnesses
were able to give evidence on the issue of taking of dowry
between the parties. Further, the Metropolitan Magistrate found
that the complainant (respondent herein) was in the habit of
lodging criminal complaints before the Police Station of petty
issues which made a mockery of the law.
22. It is also admitted by both the parties that the local village
elders held panchayat meetings several times for a reconciliation
between the appellant and the respondent, which however did
not succeed. The appellant also suffered imprisonment for 15
days as a result of C.C.No.517 of 2014 before he was released on
bail. The criminal case was finally dismissed and the appellant
was acquitted of the charges by the order dated 30.06.2015. This
however did not deter the respondent from filing more criminal
cases against the appellant.
23. Unfortunately, the acquittal of the appellant was
subsequent to the impugned judgment dated 02.11.2021. The
acquittal assumes significance in light of the allegations made by
the respondent against the appellant. The acquittal casts a
shadow on the truth of the allegations made by the respondent.
Further, the consequences of the criminal cases cannot be
discounted. The appellant lost his job as a teacher and is unable
to find a new job by reason of the criminal cases registered
against him. There is no evidence filed before the Court to show
that the appellant and the respondent intend to continue living as
a married couple or are looking forward to a life together.
24. Moreover, the respondent-wife has admitted that the
parties lived together as husband and wife only for 3 months and
that she is living apart from the appellant for 7 years immediately
preceding the date of the cross-examination which was on
16.03.2021. The records also show that the respondent is drawing
pension from the authorities in the category of a married woman
who has been separated from her husband for more than 1 year.
25. The only point urged by the counsel for the respondent is
of maintenance and that the appellant should take the
responsibility of the respondent's financial needs. The respondent
can certainly exercise this right in independent proceedings. We
do not wish to express any view on the same since those
proceedings are not before us.
26. The above reasons persuade us to allow the appeal. We
have no doubt that the appellant is entitled to a decree of divorce
on the ground of cruelty and of the marriage having broken
down beyond repair. There is no chance of the parties resuming
their matrimonial life. The parties have also not expressed any
intention to do so by way of their respective submissions or by
documentary evidence. Since the very foundation of the
marriage has fallen apart, the Court cannot force the parties to
reconcile and live together as husband and wife.
27. The impugned order dated 02.11.2021 is set aside.
C.M.A.No.68 of 2024 is accordingly allowed and disposed of
along with all connected Interlocutory Applications. There shall
be no order as to costs.
_________________________________
MOUSHUMI BHATTACHARYA, J
______________________________
M.G.PRIYADARSINI, J
Date: 21.06.2024
va
