Smt Beena Devi Vs Ravindra

The instant civil miscellaneous appeal under Section 28 of the Hindu Marriage Act, 1955 (to be referred as ‘the Act of 1955’), has been filed by and on behalf of the appellant-wife, assailing the judgment dated 07.03.2017 passed in Divorce Petition No.665/2015 by Additional District Judge, Bansur, Distt. Alwar, whereby and whereunder the divorce petition filed by appellantwife under Section 13 of the Act of 1955, was dismissed.

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After service of notice for hearing of appeal, the respondenthusband put in appearance through his counsel on 18.07.2017, but thereafter no one appeared on his behalf to argue and contest the appeal.

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We have heard learned counsel for the appellant and perused

the record.

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Factual matrix of appeal, as culled out from the record, in brief, is as under:-

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4.1. The appellant-wife filed a divorce petition on 13.01.2014 stating inter alia that her husband is a characterless man and has relations with other women; he used to beat and man-handle her in inebriated condition since he is a liquor addict; his attitude and behavior with the appellant-wife is cruel and finally, out of greed / demand of dowry, he turned her out from her matrimonial home on 10.10.2013. It has inter alia been stated that since thereafter, the appellant-wife is compelled to take shelter at her parental home. In respect of subjecting her to cruelty for demand of dowry, an F.I.R. No.479/2013 for the offences under Sections 498-A & 406 of I.P.C. was lodged at Police Station Bansur, wherein after investigation, charge-sheet against her husband has been filed. It has further been stated that though the appellant-wife tried for restitution of conjugal rights and save her matrimonial life but the respondent-husband has categorically denied on 01.01.2014 to keep her with him and not agreed for cohabitation. Hence, she was compelled to file the divorce petition.

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4.2. The respondent-husband filed reply to the divorce petition and while denying the averments of cruelty and other allegations, stated that the appellant-wife is an educated woman having credentials of M.A. B.Ed. degrees whereas the respondenthusband is less educated i.e. up to 10^th standard; hence for such reason, she does not want to live with the husband and has filed a divorce petition averting false allegations against him.

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4.3. On the basis of rival pleadings, the Family Court framed issues and permitted the parties to adduce their evidence(s).

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4.4. In evidence, from the side of the appellant-wife, she herself deposed her statements in the witness-box as AW-1. In support, statements of two other witnesses i.e. her father and one relative as AW-2 & AW-3, were also deposed.

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4.5. In rebuttal, the respondent-husband produced himself as NAW-1 and also produced his father and one relative as NAW-2 & NAW-3.

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4.6. The Family Court vide judgment dated 07.03.2017, dismissed the divorce petition on merits with the fact finding that the allegations of cruelty have not been established, hence this appeal.

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In her affidavit in chief-examination, the appellant-wife (AW1) has clearly deposed that her husband does not love her and has physical relations with other women; he is a person of loose character. She stated that her husband started to consume liquor everyday and on raising voice and objection, he used to beat her and badly misbehaved with her in manifold ways. She has also deposed the statement levelling allegations of demanding dowry and to desert her with effect from 10.10.2013, the day when she was turned out of matrimonial home after giving beatings to her. She has disclosed about lodging an F.I.R. No.479/2013 at Police Station Bansur, wherein after investigation, charge-sheet for offences under Sections 498-A & 406 of I.P.C., has been submitted against her husband and the criminal case is under trial. She clearly deposed that on 01.01.2014, her husband specifically

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denied from cohabitation with her and there is no change in his attitude and behavior towards her. In her cross-examination, wife remained static about her evidence in respect of cruelty committed by her husband and leading an adulterous life. She candidly denied that due to being more educated than husband, she herself does not want to live with husband and seeks divorce for such reason only.

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The evidence of appellant-wife, in respect of turning her out of matrimonial home by respondent-husband on 10.10.2013, has been corroborated by witness, namely Manphool (AW-2) as also by her father, Ramesh (AW-3). 7. In the affidavit of evidence in chief produced by husband (NAW-1), the respondent-husband has refuted the allegations levelled against him but has not denied the allegations of consuming liquor and beating his wife. The allegations of having relations with other women have also not been specifically denied. The respondent-husband has denied the allegations of demand of dowry and stated that since his wife is more educated than him, therefore, she herself does not want to continue marital relation with him, whereas he, from his side, time and again tried for restitution of conjugal rights. The husband has not denied that the wife is living at her parental home since 10.10.2013. In his crossexamination, he denies to commit any man-handling with his wife and also denied the fact of turning her out of matrimonial home on 10.10.2013 on account of demand of dowry. The evidence of father of the respondent-husband, namely Dataram (NAW-2) and Phoolsingh (NAW-3) is virtually hearsay and both have said

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casually that the wife of Ravindra herself is not ready for restitution of conjugal relationship with him.

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Having gone through the evidences of both the parties and the documents, it is apparent that in respect of committing cruelty by respondent-husband towards appellant-wife for demand of dowry, an F.I.R. No.479/2013 was lodged wherein after investigation, the Police submitted charge-sheet. The Court has framed charges against the husband for offences under Sections 498-A & 406 of I.P.C. and a criminal case is pending under trial. We are of the view that, at this stage, it would not be just and proper to expose any fact finding in respect of the allegations of demand of dowry and the allegations of cruelty, which is subject matter in issue in the pending criminal case.

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Nevertheless, the word “Cruelty” for the purpose of ground of divorce has altogether a different meaning and fundamentally, same can be considered as a human behavior and conduct of one spouse towards the other spouse, which adversely affects his / her mental or physical peace. The word “Cruelty” indeed has not been defined anywhere in the Act of 1955. However, in catena of judgments, such term has been explained. An established view, which has been expounded time and again is that the cruelty, for the purpose of deciding the matrimonial dispute in divorce, can be intentional or unintentional and it can be physical or mental as well. In the opinion of this Court, if one spouse leads an adulterous life and leaves the other spouse in ignominity, same constitutes an element of mental cruelty for another spouse and sufficient to invoke the ground of cruelty for divorce.

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In the case at hand, the appellant-wife has led the evidence that her husband has physical relations with other women and does not love her nor maintains physical relations with her. Such an allegation of wife has not been specifically refuted by the husband. From the evidence of parties, it transpires that since 10.10.2013, the wife is living separately from her husband at her parental home and this fact has not been disputed by the husband. The respondent-husband, his father and witness i.e. NAW-1, NAW-2 & NAW-3 stated that the husband made an endeavor for restitution of conjugal rights with the appellant-wife but since she is more educated than the husband, she did not agree for cohabitation. This evidence of respondent itself, not only gives inference that the wife is living separately from husband at her parental home since 10.10.2013 but also strengthens the factum of leaving the appellant-wife at her parental home.

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It is noteworthy that the appellant-wife entered into marriage with the respondent-husband on 07.05.2009 and out of their cohabitation, one boy was born and the appellant-wife stayed at matrimonial home with the husband till 10.10.2013. It is not the case of respondent-husband that the appellant-wife gained higher education after marriage. Indeed the appellant-wife voluntarily and willingly entered into marriage with the respondent, knowing well that he is educated up to 10^th standard. Therefore, it is difficult to digest and believe that the appellant herself left matrimonial home, due to being higher educated, hence, the reasons assigned by respondent-husband, for leaving matrimonial home by the appellant-wife by her own choice and

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not being ready and willing to restitute her relations, cannot be accepted. Respondent-husband has not made any serious endeavor for restitution of conjugal rights, mere verbal saying is not suffice. The respondent-husband never moved any application for restitution of conjugal rights to restore relationship with the appellant-wife. Thus, on the basis of evidence of appellant-wife, an inference can be drawn that on account of subjecting her to cruelty, by the husband, as pointed out by her by several means sometimes by behavior of ignominy, sometimes physically or mentally, she was compelled to live separately from her husband along with her minor son, at her parental home. In this way, sufficient evidence and circumstances exist to show & prove commission of cruelty by respondent-husband towards the appellant-wife which can easily be inferred and a decree of divorce, on the ground of cruelty, can be passed in favour of the appellant-wife.

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In case of Parveen Mehta v. Inderjit Mehta [(2002) 5 SCC 706] , in respect of term “cruelty” for the purpose of Section 13(1)(ia) of Hindu Marriage Act, in Para No.21, following observations were made:-

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“ 21. 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 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. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn

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from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”

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(Emphasis Supplied)

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In an another landmark and oft-quoted judgment on the issue of cruelty, delivered by the Hon’ble Supreme Court in case of

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Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] , while discussing the term “mental cruelty” few of illustrations were laid down, which are though not exhaustive, nor can be taken as uniform standard, but for the purpose of guidance, may be taken into consideration. Relevant portion of judgment from Para No.101 is being reproduced hereunder:-

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“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:

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(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.

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(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.

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…. (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.

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(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

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(Emphasis Supplied)

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Following the ratio decidendi and the important guidelines pronounced by the Apex Court in case of Samar Ghosh (supra), the Apex Court recently in case of Rakesh Raman v. Kavita, [(2023) 17 SCC 433] observed and held in Para No.16, as

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under:-

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“16. Matrimonial cases before the courts pose a different challenge, quite unlike any other, as we are dealing with human relationships with its bundle of emotions, with all its faults and frailties. It is not possible in every case to pinpoint to an act of “cruelty” or blameworthy conduct of the spouse. The nature of relationship, the general behaviour of the parties towards each other, or long separation between the two are relevant factors which a court must take into consideration. In Samar Ghosh v. Jaya Ghosh [Samar Ghosh v.Jaya Ghosh, (2007) 4 SCC 511] a three-Judge Bench of this Court had dealt in detail as to what would constitute cruelty under Section 13(1)(i-a) of the Act. An important guideline in the above decision is on the approach of a court in determining cruelty. What has to be examined here is the entire matrimonial relationship, as cruelty may not be in a violent act or acts but in a given case has to be gathered from injurious reproaches, complaints, accusations, taunts, etc. The Court relied on the definition of cruelty in matrimonial relationships in Halsbury's Laws of England (Vol. 13, 4th Edn., Para 1269, p. 602) which must be reproduced here:

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“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality

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which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.”

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(Emphasis Supplied)

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We find that the Additional District Judge, Bansur erred in understanding the correct and true meaning of word “Cruelty” for the purpose of divorce and the fact findings that the factum of cruelty has not been established by wife are erroneous and perverse, in the light of appreciation and discussion of evidence made by this Court in foregoing paragraphs. Civil dispute of matrimonial nature can be decided on the basis of preponderance of probabilities, which tilts in favour of appellant-wife to face cruelty from her husband and it entitled for a decree of divorce on such ground. Accordingly, the findings of Family Court, in respect of ground of cruelty, are hereby reversed.

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For the discussion and the reasons made hereinabove, we can conclude that it is not a case where the appellant-wife is trying to get benefit of her own wrong to obtain the decree of divorce against the respondent-husband. As has been concluded hereinabove that the appellant-wife is living separately with her

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minor son, from the husband since 10.10.2013 and staying at her parental home; the respondent-husband did not make any endeavor nor submitted any application seeking restitution of conjugal rights to resume relationship with the appellant-wife and there is nothing on record to show that he even seriously intended to maintain matrimonial relations with the appellant-wife. A bald statement in his evidence that he has filed an application for restitution of conjugal rights has neither been supported by any documentary proof nor found trustworthy. Even the issue No.2, in respect of conduct of appellant-wife for not agreeing for restitution of conjugal rights, has been decided against the respondenthusband, whereagainst no appeal has been preferred by him.

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Net outcome of the aforesaid discussion is that the appellantwife is entitled for a decree of divorce on the ground of cruelty under Section 13(1)(i-a) of the Act of 1955 against her husband. Accordingly, the present appeal is allowed . The impugned judgment dated 07.03.2017 is hereby quashed and on the ground of cruelty, the marriage between both the parties dated 07.05.2009 is hereby dissolved.

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Decree be prepared accordingly.

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Pending application(s), if any, also stands disposed of.

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Record of the Family Court be sent back.

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(SANDEEP TANEJA),J

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(SUDESH BANSAL),J

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SAHIL SONI /7

Smt Beena Devi v. Ravindra

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Smt Beena Devi v. Ravindra

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