S. Hanumantha
Rao Vs. S. Ramani [1999] INSC 114 (31 March 1999)
V.N.Khare,
R.P.Sethi J U D G E M E N T V.N.KHARE, J.
The
appellant is the husband who is in appeal. The respondent is his wife. The
appellant and the respondent were married according to Hindu rites and customs
on 26-8-88 at Hyderabad. The marriage was also consumated. During October 1988,
while the couple were in a honeymoon, it is alleged that the respondent told
the appellant that she was forced into marriage by her parents, while she was more
interested in her career rather than a married life, as she had studied M.Sc.
in electronics. It is also alleged by the appellant that on 15.10.88, on a
petty quarrel, the respondent walked out of his house and it was after great
persuasion she was brought back to his house. The very next day of the said
incident, the respondent was taken by her parents to their house and despite
request by the appellant and members of his family, she did not return for
about two-and-a-half months to the house of the appellant. During that period,
there was a reconciliation, as a result of which the respondent was sent to the
house of the appellant on the condition that she should be sent to the house of
her parents on every Thursday and taken back on Saturday to facilitate her to
perform Santoshimata Puja on every Friday.
According
to the appellant, this arrangement also did not suit the respondent and all the
time she complained of deprivation and expressed her desire to return to her parents
house permanently. On 8-3-89, it is alleged that the respondent
in privacy took out her Mangalsutra and threw it at the appellant, and on the
very next day, she went to her parents place and thereafter she never returned
to the appellants house, despite several requests.
Thereafter,
there were several meetings for reconciliation which failed. It is also alleged
that the respondent got a complaint lodged through her uncle who was then
posted as Superintendent of Police, with the Womens Protection Cell, CID,
Hyderabad against him and his father and other members of his family as a
result of which they had to seek anticipatory bail from the court.
Subsequently, again, efforts were made for reconciliation but they did not
fructify and under such circumstances, the appellant filed a petition before
the Judge, City Civil
Court, Hyderabad for dissolution of marriage by
granting decree of divorce on the grounds of mental cruelty and desertion. The
grounds of cruelty were attributed to three acts of the respondent.
Firstly,
while in privacy, the respondent took out her Mangalsutra and threw it at the
appellant; secondly, the respondent kept, maintained and preserved the copies
of the letters sent by her to the appellant which shattered the mutual
confidence between the couple; and thirdly, that the respondent lodged a
complaint through her uncle against the appellant and the other members of his
family u/s 498A IPC with the Womens Protection Cell, Hyderabad, for which they
had to obtain anticipatory bail from the court. According to the appellant, all
these three acts of the respondent constituted mental cruelty upon him and thus
was entitled to a decree of divorce. The wife filed counter affidavit to the
petition filed by her husband wherein she admitted that while in privacy she
took out Mangalsutra and that she maintained and preserved the copies of
letters sent by her to her husband. However, she denied having lodged any
complaint with the Womens Protection Cell, Hyderabad or threw Mangalsutra at the face of her husband. The appellant examined
himself as well as his witnesses in support of his allegation and filed the
letters sent by the respondent to him which were exhibited as Exts. A1 to A10.
The Fourth Additional District Judge, City Civil Court, found that the acts of
the respondent in taking out Mangalsutra and throwing it at the husband,
keeping and maintaining the copies of letters sent to her husband and lodging
of complaint with the Women Protection Cell constituted mental cruelty upon the
husband and as such the appellant was entitled to decree of divorce. However,
the trial court found that the wife did not desert the appellant.
Aggrieved,
the respondent filed an appeal before the Andhra Pradesh High Court. The High
Court, on appreciation of evidence found, that the incidents alleged by the
appellant were blown out of proportion and in fact those incidents did not
constitute mental cruelty. Consequently, the decree of the trial court was
reversed and the appeal was allowed. It is against this judgment the appellant
is in appeal before us.
Learned
counsel appearing for the appellant urged that the view taken by the High Court
that since the parties after the incident of 8th March, 1989, cohabited and it therefore amounts to condonation of guilt
of the wife is based on no evidence, and as such the said finding suffers from
legal infirmity. It is true that the High Court recorded the following finding
in its judgment - the very admission in the petition of the respondent that he
did not make an issue of the incident and cohabited with the appellant,
thereafter constituted condonation.
On a
perusal of the petition filed by the appellant, what we find is that in the
petition for divorce, the appellant has alleged that on 8th March, 1989, his wife took out her Mangalsutra
and threw it at him and thereafter finally deserted him. We further find that
the appellant and his witness in their testimony nowhere admitted that after
the date of the incident i.e. on 8th March 1989 the wife and the husband cohabited. The respondent also in
her evidence never stated that she cohabited with her husband after the date of
incident. It is, however, correct that the appellant in connection with the
incident of 8th March,
1989 stated that he
did not make an issue out of the said incident as it would have disturbed the
peaceful life of his family. But, he would never forgive his wife for the said
act. We, therefore, do not find any evidence of the fact that the parties
cohabited after 8th
March, 1989, as the
wife stated to have left the house of the appellant after that date. In the
absence of such evidence, the finding of the High Court that since the parties
cohabited after 8th
March, 1989 and as
such same would constitute condonation of guilt, is unsustainable.
It was
then urged that the view taken by the High Court that the incident of throwing
of Mangalsutra by the wife as alleged by the appellant has not been
substantiated and further the removal of Mangalsutra by his wife would not
amount to mental cruelty within the meaning of Section 13(1)(ia) of Hindu
Marriage Act, is erroneous. The appellant in his petition as well as in his evidence,
alleged that his wife after taking out her Mangalsutra threw at him. The wife
in her counter affidavit and statement admitted that she removed the Mangalsutra
but denied that she had ever thrown the Mangalsutra at her husband. As stated
above this incident took place in privacy. There was no other witness to the
incident. The respondent very well could have denied the alleged incident. But
she admitted to have removed the Mangalsutra only to please her husband.
Moreover,
when the wife was being cross-examined before the trial court no question was
put to her about throwing of Mangalsutra at the appellant. For all these
reasons we find that testimony of the respondent was rightly believed by the
High Court while disbelieving the incident of throwing of Mangalsutra by the
respondent, as alleged by the appellant.
Coming
to the second limb of the argument whether the removal of Mangalsutra by the
respondent constituted mental cruelty upon the husband, learned counsel for the
appellant submitted that Mangalsutra around the neck of a wife is a sacred
thing which symbolises the continuance of married life and Mangalsutra is
removed only after the death of husband. Thus, the removal of Mangalsutra by
the respondent-wife was an act which reflected mental cruelty of highest order
as it caused agony and hurt the sentiments of the appellant.
Before
we deal with the submission it is necessary to find out what is mental cruelty
as envisaged under section 13(1)(ia) of the Act. Mental cruelty broadly means,
when either party causes mental pain, agony or suffering of such a magnitude
that it severs the bond between the wife and husband and as a result of which
it becomes impossible for the party who has suffered to live with the other
party. In other words, the party who has committed wrong is not expected to
live with the other party. It is in this background we have to test the
argument raised by the learned counsel for the appellant. The respondent after
having admitted the removal of Mangalsutra stated, that while in privacy the
husband often used to ask her to remove the chain and bangles. She has also
stated that in her parents house when her aunt and mother used to go to
bathroom they used to take out Mangalsutra from their neck and therefore she
thought that she was not doing anything wrong in removing Mangalsutra when she
was asked to do so by her husband. She also stated that whenever she removed Mangalsutra,
she never thought of bringing an end to the married life and was still wearing
her Mangalsutra; and it is when her husband made hue and cry of such removal of
Mangalsutra, she profusely apologized . From all these evidence the High Court
concluded that the incident was blown out of proportion and the appellant
attempted to take advantage of the incident by picturising the same as an act
of cruelty on the part of the wife. The question, therefore, arises whether the
removal of the Mangalsutra by the wife at the instance of her husband would amount
to mental cruelty within the meaning of Section 13(1)(ia) of the Act. It is no
doubt true that Mangalsutra around the neck of a wife is a sacred thing for a
Hindu wife as it symbolises continuance of married life. A Hindu wife removes
her Mangalsutra only after the death of her husband.
But
here we are not concerned with a case where a wife after tearing her Mangalsutra
threw at her husband and walked out of her husbands house. Here is a case where
a wife while in privacy, occasionally has been removing her Mangalsutra and
bangles on asking of her husband with a view to please him. If the removal of Mangalsutra
was something wrong amounting to mental cruelty, as submitted by learned
counsel for the appellant, it was the husband who instigated his wife to commit
that wrong and thus was an abettor. Under such circumstances the appellant
cannot be allowed to take advantage of a wrong done by his wife of which he
himself was responsible. In such a case the appellant cannot be allowed to
complain that his wife is guilty of committing an act of mental cruelty upon
him, and further by such an act, has suffered mental pain and agony as a result
of which married life has broken down, and he is not expected to live with his
wife. It also appears to us that, whenever the appellant asked her wife for
removal of her Mangalsutra, the respondent never comprehended that her husband
at any point of time would react to such occurrences in the way he did.
Under
such circumstances, the appellant was not expected to have made an issue out of
it. We are, therefore, of the view that removal of Mangalsutra by the
respondent would not constitute mental cruelty within the meaning of Section
13(1)(ia) of the Act.
The
next ground of act of cruelty attributed to the wife relates to her preserving
and maintaining copies of her letters sent to her husband. Learned counsel
urged that the act of the wifes preserving copies of such letters has shaken
the confidence of the husband which amounts to mental cruelty upon her husband,
as according to him, copies of such letters were preserved knowingly to use
them as evidence in future and such an action definitely amounts to mental
cruelty.
The
view taken by the High Court was that mere retention of copies of the letters
would not amount to mental cruelty. We also find that if the wife had any
intention to use copies of those letters she would have filed the same before
the trial court. Excepting filing a counter affidavit the respondent-wife did
not file any copy of the letters sent to her husband, whereas the husband has
filed all the letters sent to him by his wife in the court which were
exhibited. The respondent wife in her testimony stated that she wrote several
letters to her husband, but her husband did not reply any of them and as such she
started preserving the copies of the letters sent by her to her husband. This
act of the respondent, according to us, is a most natural behaviour of human
being placed in such circumstances. Thus, we find mere preserving the copies of
the letters by the wife does not constitute an act which amounts to mental
cruelty, and a result of which it becomes impossible for the husband to live
with his wife. We, therefore, reject the submission of learned counsel for the
appellant.
The
last act of the respondent, which according to the learned counsel for the
appellant, amounts to mental cruelty is that she lodged a complaint with the
Women Protection Cell, through her uncle and as a result of which the appellant
and the members of his family had to seek anticipatory bail. The respondent in
her evidence stated that she had never lodged any complaint against the
appellant or any members of his family with the Women Protection Cell. However,
she stated that her parents sought help from Women Protection Cell for reconciliation
through one of her relative who, at one time, happened to be the Superintendent
of Police. It is on the record that one of the functions of the Women
Protection Cell is to bring about reconciliation between the estranged spouses.
There is no evidence on record to show that either the appellant or any member
of his family were harassed by the Cell. The Cell only made efforts to bring
about reconciliation between the parties but failed. Out of panic if the
appellant and members of his family sought anticipatory bail, the respondent
cannot be blamed for that. Thus, we are of the opinion, that representation
made by the parents of the respondent to the Cell for reconciliation of the
estranged spouses does not amount to mental cruelty caused to the appellant.
For
all these reasons, we do not find any merit in this appeal. The appeal is
accordingly dismissed. There shall be no order as to costs.
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