Parveen
Mehta Vs. Inderjit Mehta [2002] Insc 289 (11 July 2002)
D.P.
Mohapatra, Brijesh Kumar.D.P.Mohapatra,J.
Leave
granted.
What
is the meaning and import of the expression 'cruelty' as a matrimonial offence
is the core question on the determination of which depends the result and the
fate of this case.
The
appellant is the wife of the respondent. They were married according to Hindu
rites and customs on 6th
December, 1985. The
marriage was preceded by negotiation between the two families, ring exchange ceremony,
etc. A meeting between the boy and the girl was also arranged at Yamuna Nagar
in the State of Haryana.
After
marriage the spouses stayed together at Panipat where the respondent was posted
as a Judicial Officer.
They
lived together till 28th
April, 1986 when they
parted company never to stay together again. It is the case of the respondent
that right from the first day of the marriage he sensed something abnormal with
his wife; he was unable to consummate the marriage as there was no cooperation
from the side of the wife for sexual intercourse. Despite several attempts
cohabitation was not possible for lack of cooperation on the part of the wife.
It is the further case of the respondent that when he first met his wife when
some members of the two families met he had noticed that she was looking very
frail and weak. When he wanted to know the reason for such state of her health
her father and other relations told him that she had been undergoing a strict
diet control and had been making efforts to reduce her w.eight On questioning
his wife immediately after the marriage the respondent could ascertain that she
was suffering from some ailment and she was under the treatment of Vaid Amar Nath
Sastry of Chandigarh. On 10th
December, 1985 the
respondent took his wife to see Mr.Sastry at Chandigarh who informed him that father of the girl was his close
friend and he was already seized of the problems of her health. He gave some
medicines to be taken by her. Thereafter they returned to Yamuna Nagar where
parents of the respondent were living. Subsequently, the respondent took the
appellant to Panipat where he was posted and they started living there and
continued with the medicines. In February, 1986 the appellant agreed to be
examined by Dr.B.M.Nagpal of Civil Hospital, Panipat.
The
doctor advised a thorough check up and diagnosis.
However,
this was not possible since the appellant did not cooperate and ultimately gave
out because she was not interested in taking any medical treatment.
The
respondent further alleged that the state of health of the appellant continued
to deteriorate; she continued to lose weight; she suffered from asthmatic
attacks; on account of her ailment her behavior became quarrelsome; and on
trifle matters she threatened to leave the matrimonial home. It was further
contended that during her stay at Panipat when Surinder Singh Rao and Virender
Jain, friends of the respondent visited his place, the appellant refused to
prepare tea and started misbehaving with him in presence of the outsiders
thereby causing embarrassment to him. Ultimately on 28th April, 1986 her brother and brother's wife came to Panipat and took the
appellant with them. It was the further case of the respondent that when the
appellant was with her parents several attempts were made by him offering to
give her the best possible medical treatment so that the condition of her
health may improve and both of them could lead a happy married life. All such
attempts failed.
The
offer of medical treatment was rejected and even nature of the ailment suffered
by her was not disclosed to the respondent.
On one
occasion when Shri S.K. Jain, a senior officer of the Judicial Service, then
the Legal Remembrancer of Haryana and who later became a Judge of the High
Court was discussing the matter with the parties with a view to bring about a
settlement the appellant caught hold of the shirt collar of the respondent and
created an ugly and embarrassing situation. Again on 30th July 1986 the appellant accompanied by a
number of persons searched for the respondent in the Court premises at Kaithal
and not finding him there forcibly entered his house and threatened him. A
report about the incident was sent to the superior officer of the respondent.
Alleging the aforestated facts and circumstances the respondent filed the
petition in August, 1996 seeking dissolution of the marriage on the grounds of
cruelty and desertion.
The
appellant refuted the allegations made in the petition. She denied that her
husband had been misled regarding the state of her health before their
marriage. She alleged that the marriage was duly consummated and the phera
ceremony was performed; and that her husband had been expressing full love and
affection towards her. She denied that she suffered from any serious ailment
and had been treated by Vaid Amar Nath Sastri. It was her case that she had
become pregnant from the wedlock but unfortunately there was miscarriage. It
was the further case of the appellant that the respondent and his parents
wanted to pressurise the appellant and her parents to agree for a divorce by
mutual consent. On 21st June, 1987 when a meeting of relations of both sides
took place at the house of her mother's sister Smt.Parakash Kapur at Yamuna Nagar
the respondent stated that the appellant was too frail and weak; that she must
be suffering from some disease and therefore, he was not prepared to take her
back. Thereafter several attempts were made by her parents and other relations
to persuade the respondent to take the appellant to his house but such attempts
were of no avail on account of want of any response from the respondent and his
parents.
On the
pleadings of the parties, the Trial Court framed the following issues :
"1)
Whether the respondent-wife has deserted the petitioner, if so, its effect? OPP
2)
Whether the respondent-wife is guilty of cruelty, if so, its effect? OPP
3)
Whether this petition is barred by latches, in accordance with Section 23(1a)
and (d) of the Act? OPP
4)
Relief."
Both
the parties led evidence, both oral and documentary, in support of their cases.
The Trial Court on assessing the evidence on record, dismissed the petition for
divorce filed by the respondent.
The
respondent filed an appeal, FAO No.42-M/99 before the High Court assailing the
judgment of the Trial Court. The appeal was allowed by the learned Single Judge
by the judgment rendered on 1st June, 2000.
The learned Single Judge granted the prayer of the respondent for dissolution
of the marriage on the ground of cruelty and further held that as the marriage
took place about 14 years ago and there was no child out of the wedlock it
would be in the interest of justice that the parties should be separated from
each other. The operative portion of the judgment is quoted hereunder :
"In
view of the discussion as such the only conclusion which can be arrived at is
that despite the fact that the respondent is a good lady but has created the
aforesaid situation because of her own act and conduct concerning the
non-disclosure of her state of health and concealment by her above acted as a
mental and physical cruelty to the appellant which entitles him to a decree of
divorce. Therefore, the findings of the learned District Judge on issue Nos.1
to 3 are reversed.
For
the foregoing reasons, the appeal is allowed, marriage between the parties
stands dissolved and a decree of divorce on the grounds of desertion and
cruelty is hereby granted in favour of the appellant (husband) and against the
respondent (wife). In the circumstances of the case, the parties are left to
bear their own costs.
However,
it would be appropriate to ask the husband not to remarry till 30.9.2000. Hence
ordered accordingly." The wife, who is the appellant herein, filed an
appeal before the Division Bench, Letters Patent Appeal No.1000 of 2000,
assailing the judgment of the learned Single Judge. The Division Bench of the
High Court by the judgment rendered on 8th August, 2000 dismissed the Letters Patent Appeal
in limine. The Division Bench held:
"Even
otherwise, in the facts and circumstances of the case in hand, in our view, it
cannot be said that the husband has tried to take advantage of any wrong on his
part. Rather, he did make the best possible effort to explore the possibility
of detecting the deficiency or disease, if any, and for treatment of poor health
of his wife.
But,
all in vain. We find no merit in the Letters Patent Appeal. It is, therefore,
dismissed in limine." The said judgment is under challenge in this appeal.
Shri Ujjagar
Singh, learned senior counsel appearing for the appellant contended that in the
context of facts and circumstances of the case the High Court has erred in
granting the prayer for divorce by the respondent on the sole ground of
cruelty. He further contended that even assuming that the spouses did not enjoy
normal sexual relationship with each other on account of frail health of the
appellant and there were heated exchanges between the parties followed by the
appellant catching hold of shirt collar of the husband, that is not sufficient
to establish a case of cruelty for the purpose of Section 13(1)(ia) of the Act.
Shri Singh also contended that if the ground of cruelty fails then the further
ground stated in favour of the decree of divorce that the marriage has
irretrievably broken down will be of no avail to the respondent.
Shri Sudhir
Chandra, learned senior counsel appearing for the respondent strenuously
contended that in the facts and circumstances of the case the High Court
rightly recorded the finding of cruelty by the appellant towards the
respondent. Elucidating the point Shri Sudhir Chandra submitted that the
respondent was kept in the dark about the poor state of health of the appellant
at the time of the marriage negotiations despite the query made by him about
the reason for her frail and weak health.
After
marriage when the respondent was prepared to provide the best possible medical
treatment to improve her health neither the appellant nor her parents extended
their cooperation in the matter. Further, the erratic and impulsive behavior of
the wife caused serious embarrassment to the respondent before his friends and
colleagues. The cumulative effect of all the aforesaid facts and circumstances
of the case, according to Shri Sudhir Chandra, give rise to reasonable
apprehension in the mind of the respondent that it is not safe to continue
matrimonial relationship with the appellant. Thus a case of cruelty for the
purpose of Section 13(1)(ia) was made out. It was the further contention of Shri
Sudhir Chandra that the respondent remarried in December, 2000, two years after
the judgment of the Single Judge and nearly four months after the judgment of
the Division Bench was rendered. In the facts and circumstances of the case,
urged Shri Sudhir Chandra, this is not a fit case for this Court to interfere
with the judgment and decree passed by the High Court in exercise of its
jurisdiction under Article 136 of the Constitution of India.
As
noted earlier, the learned Single Judge granted the respondent's prayer for
dissolution of the marriage on the ground of 'cruelty'. Therefore, the question
arises whether in the facts and circumstances of the case a case for divorce
under Section 13(1)(ia) of the Hindu Marriage Act,1955 (for short 'the Act')
has been made out. The answer to this question depends on determination of the
question formulated earlier. In Section 13(1) it is laid down that :
"Divorce.-
(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 xxx xxx xxx
(ia) has, after the solemnization of the marriage, treated the petitioner with
cruelty;" Under the statutory provision cruelty includes both physical and
mental cruelty. The legal conception of cruelty and the kind of degree of
cruelty necessary to amount to a matrimonial offence has not been defined under
the Act. Probably, the Legislature has advisedly refrained from making any
attempt at giving a comprehensive definition of the expression that may cover
all cases, realising the danger in making such attempt.
The
accepted legal meaning in England as
also in India of this expression, which is rather
difficult to define, had been 'conduct of such character as to have caused
danger to life, limb or health (bodily or mental), or as to give rise to a
reasonable apprehension of such danger' (Russel v. Russel [(1897) AC 395 and Mulla
Hindu Law, 17th Edition, Volume II page 87]. The provision in clause (ia) of
Section 13(1), which was introduced by the Marriage Laws (Amendment) Act 68 of
1976, simply states that 'treated the petitioner with cruelty'. The object, it
would seem, was to give a definition exclusive or inclusive, which will amply
meet every particular act or conduct and not fail in some circumstances. By the
amendment the Legislature must, therefore, be understood to have left to the
courts to determine on the facts and circumstances of each case whether the
conduct amounts to cruelty. This is just as well since actions of men are so
diverse and infinite that it is almost impossible to expect a general
definition which could be exhaustive and not fail in some cases. It seems
permissible, therefore, to enter a caveat against any judicial attempt in that
direction (Mulla Hindu Law, 17th Eidition, Volume II, page 87).
This
Court in the case of Dastane vs. Dastane, AIR 1975 SC 1534, examined the
matrimonial ground of cruelty as it was stated in the old Section 10(1)(b) and
observed that any inquiry covered by that provision had to be whether the
conduct charged as cruelty is of such a character as to cause in the mind of
the petitioner a reasonable apprehension that it will be harmful or injurious
to live with the respondent. It was further observed that it was not necessary,
as under the English law that the cruelty must be of such a character as to
cause danger to life, limb or health, or as to give rise to a reasonable
apprehension of such a danger though, of course, harm or injury to health,
reputation, the working character or the like would be an important consideration
in determining whether the conduct of the respondent amounts to cruelty or not.
In essence what must be taken as fairly settled position is that though the
clause does not in terms say so it is abundantly clear that the application of
the rule must depend on the circumstances of each case; that 'cruelty'
contemplated is conduct of such type that the petitioner cannot reasonably be
expected to live with the respondent. The treatment accorded to the petitioner
must be such as to cause an apprehension in the mind of the petitioner that
cohabitation will be so harmful or injurious that she or he cannot reasonably
be expected to live with the respondent having regard to the circumstances of
each case, keeping always in view the character and condition of the parties,
their status environments and social values, as also the customs and traditions
governing them.
In the
case of Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, this Court
construing the question of 'cruelty' as a ground of divorce under Section
13(1)(ia) of the Act made the following observations :
"Treating
the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of
the Act. Cruelty has not been defined under the Act but in relation to
matrimonial matters it is contemplated as a conduct of such type which
endangers the living of the petitioner with the respondent. Cruelty consists of
acts which are dangerous to life, limb or health. Cruelty for the purpose of
the Act means where one spouse has so treated the other and manifested such
feelings towards her or him as to have inflicted bodily injury, or to have
caused reasonable apprehension of bodily injury, suffering or to have injured
health. Cruelty may be physical or mental. Mental cruelty is the conduct of
other spouse which causes mental suffering or fear to the matrimonial life of
the other. "Cruelty", therefore, postulates a treatment of the
petitioner with such cruelty as to cause a reasonable apprehension in his or
her mind that it would be harmful or injurious for the petitioner to live with
the other party. Cruelty, however, has to be distinguished from the ordinary
wear and tear of family life. It cannot be decided on the basis of the
sensitivity of the petitioner and has to be adjudged on the basis of the course
of conduct which would, in general, be dangerous for a spouse to live with the
other. In the instant case both the trial court as well as the High Court have
found on facts that the wife had failed to prove the allegations of cruelty
attributed to the respondent.
Concurrent
findings of fact arrived at by the courts cannot be disturbed by this Court in
exercise of powers under Article 136 of the Constitution of India.
Otherwise
also the averments made in the petition and the evidence led in support thereof
clearly show that the allegations, even if held to have been proved, would only
show the sensitivity of the appellant with respect to the conduct of the
respondent which cannot be termed more than ordinary wear and tear of the
family life." This Court, construing the question of mentral cruelty under
Section 13(1)(ia) of the Act, in the case of G.V.N.Kameswara Rao vs. G.Jabilli,
(2002) 2 SCC 296, observed :
"The
court has to come to a conclusion whether the acts committed by the
counter-petitioner amount to cruelty, and it is to be assessed having regard to
the status of the parties in social life, their customs, traditions and other
similar circumstances. Having regard to the sanctity and importance of
marriages in a community life, the court should consider whether the conduct of
the counter-petitioner is such that it has become intolerable for the
petitioner to suffer any longer and to live together is impossible, and then
only the court can find that there is cruelty on the part of the counter- petitioner.
This is to be judged not from a solitary incident, but on an overall
consideration of all relevant circumstances." Quoting with approval the
following passage from the judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337,
this Court observed therein:
"Mental
cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which
inflicts upon the other party such mental pain and suffering as would make it
not possible for that party to live with the other. In other words, mental
cruelty must be of such a nature that the parties cannot reasonably be expected
to live together.
The
situation must be such that the wronged party cannot reasonably be asked to put
up with such conduct and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such as to cause injury to the
health of the petitioner.
While
arriving at such conclusion, regard must be had to the social status,
educational level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are already living
apart and all other relevant facts and circumstances which it is neither
possible nor desirable to set out exhaustively. What is cruelty in one case may
not amount to cruelty in another case. It is a matter to be determined in each
case having regard to the facts and circumstances of that case. If it is a case
of accusations and allegations, regard must also be had to the context in which
they were made".
Clause
(ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to
include cases of physical as also mental cruelty. It was formerly thought that
actual physical harm or reasonable apprehension of it was the prime ingredient
of this matrimonial offence. That doctrine is now repudiated and the modern
view has been that mental cruelty can cause even more grievous injury and
create in the mind of the injured spouse reasonable apprehension that it will
be harmful or unsafe to live with the other party. The principle that cruelty
may be inferred from the whole facts and matrimonial relations of the parties
and interaction in their daily life disclosed by the evidence is of greater
cogency in cases falling under the head of mental cruelty. Thus mental cruelty
has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II,
page 91).
In the
case in hand the foundation of the case of 'cruelty' as a matrimonial offence
is based on the allegations made by the husband that right from the day one
after marriage the wife was not prepared to cooperate with him in having sexual
intercourse on account of which the marriage could not be consummated. When the
husband offered to have the wife treated medically she refused. As the
condition of her health deteriorated she became irritating and unreasonable in
her behaviour towards the husband. She misbehaved with his friends and
relations. She even abused him, scolded him and caught hold of his shirt collar
in presence of elderly persons like Shri S.K.Jain. This Court in the case of
plays an important role in marital life and cannot be separated from other
factors which lend to matrimony a sense of fruition and fulfillment".
Cruelty
for the purpose of Section 13(1)(ia) is to be taken as a behavior 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 behavior or behavioral pattern by the other.
Unlike the case of physical cruelty the 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 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
misbehavior 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.
Judged
in the light of the principles discussed above what we find is that right from
the beginning the matrimonial relationship between the parties was not normal;
the spouses stayed together at the matrimonial home for a short period of about
six months; the respondent had been trying to persuade the appellant and her
parents to agree to go for proper medical treatment to improve her health so
that the parties may lead a normal sexual life; all such attempts proved
futile. The appellant even refused to subject herself to medical test as
advised by the doctor. After 21st June, 1987 she stayed away from the
matrimonial home and the respondent was deprived of her company. In such
circumstances, the respondent who was enjoying normal health was likely to feel
a sense of anguish and frustration in being deprived of normal cohabitation
that every married person expects to enjoy and also social embarrassment due to
the behavior of the appellant. Further, the conduct of the appellant in
approaching the police complaining against her husband and his parents and in
not accepting the advice of the superior judicial officer Mr.S.K.Jain and
taking a false plea in the case that she had conceived but unfortunately there
was miscarriage are bound to cause a sense of mental depression in the
respondent. The cumulative effect of all these on the mind of the respondent,
in our considered view, amounts to mental cruelty caused due to the stubborn
attitude and inexplicably unreasonable conduct of the appellant.
The
learned Single Judge in his judgment has discussed the evidence in detail and
has based his findings on such discussions. In the Letters Patent Appeal the
Division Bench on consideration of the facts and circumstances of the case
agreed with the findings recorded by the learned Single Judge. In the context
of the facts and circumstances on record we are of the view that the learned
Single Judge rightly came to the conclusion that the prayer of the respondent
for dissolution of the marriage on the ground of cruelty under Section 13(1)(ia)
of the Act was acceptable. Therefore, the Division Bench committed no error in
upholding the judgment of the learned Single Judge.
As
noted earlier the parties were married on 6th December, 1985. They stayed
together for a short period till 28th April 1986 when they parted company.
Despite several attempts by relatives and well-wishers no conciliation between
them was possible. The petition for the dissolution of the marriage was filed
in the year 1996.
In the
meantime so many years have elapsed since the spouses parted company. In these
circumstances it can be reasonably inferred that the marriage between the
parties has broken down irretrievably without any fault on the part of the
respondent. Further the respondent has re- married in the year 2000. On this
ground also the decision of the High Court in favour of the respondent's prayer
for dissolution of the marriage should not be disturbed. Accordingly this
appeal fails and is dismissed.
There
will, however, be no order for costs.
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