Mayadevi Vs. Jagdish Prasad  Insc 182 (21 February 2007)
Dr. ARIJIT PASAYAT & DALVEER BHANDARI
(Arising out of SLP (C) NO. 3686 OF 2006) Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment rendered by a learned Single
Judge of the Rajasthan High Court at Jodhpur dismissing the appeal filed by the
appellant under Section 28 of the Hindu Marriage Act, 1955 (in short the
Background facts in a nutshell are as follows:
Respondent filed an application for divorce on the ground of cruelty
alleging that because of the acts of cruelty on several occasions perpetuated
by the appellant, the respondent- husband was under apprehension that it would
not be desirable and safe to stay with the appellant and to continue their
It was, inter-alia, stated in the divorce petition as follows:
Parties got married according to the Hindu rites on 17.4.1993. The
appellant's father was an employee in the Railway department and the appellant
used to make demands for money frequently and used to quarrel when money was
not paid. She did not even provide food to her husband or the children and used
to threaten the husband to falsely implicate him in a case of dowry demand and
to kill the children and to put the blame on the respondent-husband and his
family members. On 23.10.1999 she took Rs.1,05,000/- from the respondent and
acknowledged the receipt of the money in the diary of the respondent-husband.
She used to borrow money from time to time at the behest of her parents. From
the wedlock four children were borne namely, Neha, Anu, Khemraj and Vishnu
Sagar. The appellant used to keep the children tied by ropes and she attempted
to throw them down from the rooftop and used to physically torture them. She
was temperamentally very cruel and used to behave cruelly with the children
also. She always used to threaten that she will destroy the whole family of the
respondent and that there would be no successor left in the family. On 5.4.2002
at about 12.00 noon she left her parental home alongwith three children namely,
Neha, Anu and Khemraj on the pretext that she was going to her parental house
which was located in the same village. Since she did not return till evening as
was told to the respondent-husband, he started searching for her.
During course of search the garments and slippers of the children and the
appellant were found lying near the well of Ramialji. Police was informed and
on search dead bodies of the three children were recovered from the well and
appellant was also taken out of the well. A criminal case was instituted and
she was convicted for an offence under Section 302 of the Indian Penal Code,
1860 (in short the 'IPC'). She was pregnant at that time and subsequently
delivered a child. She filed an application for bail. While on bail, she filed
a false case alleging dowry demand against the respondent-husband and his
family members. Final report was given by police and it was observed that a
false case had been lodged.
The appellant filed her response to the petition for divorce and contended
that no amount was borrowed by her father or any of her family members. The
respondent-husband used to threaten her for dowry and she had never perpetuated
any cruelty so far as the children and the husband are concerned. She did not
know as to how the children fell into the well. She was herself unconscious and
recovered after about four days. The husband, in fact, turned her out of
matrimonial home on 5.4.2002 alongwith their three children.
Unfortunately, she and the three children fell into the well.
The appeal is pending against her conviction.
The trial Court found that the allegation of cruelty was established.
Several instances were noted. One of them related to her behaviour on the date
of judgment in the criminal case.
After the judgment of conviction was pronounced, she threatened to kill the
husband and prosecute him. It was also noted by the trial Court that the
allegation made by her alleging for dowry demand was dis-believed and the
police gave final report stating that the case was falsely lodged. The trial
Court granted the decree of divorce which was, as noted above, confirmed by the
High Court in appeal by dismissing appellant appeal.
Learned counsel for the appellant submitted that the foundation of decree
for divorce is the alleged conviction for which the appeal is pending and,
therefore, the High Court should not have disposed of the matter. In any event,
it is submitted that it was the husband and his family members who were
torturing her and being threatened by the husband she had not made any
grievance with the police.
Unfortunately, when she made the allegation, the police did not properly
investigate the matter and gave a final report exonerating the husband.
Learned counsel for the respondent on the other hand submitted that the
instances highlighted by the trial Court and analysed in great detail by the
High Court clearly made out a case for dowry and no interference is called for
in this appeal.
The expression "cruelty" has not been defined in the Act.
Cruelty can be physical or mental. 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 values,
status, environment in which they live. Cruelty, as noted above, 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. In delicate
human relationship like matrimony, one has to see the probabilities of the
case. The concept, a 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 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.
The expression 'cruelty' has been used in relation to human conduct or human
behaviour. It is the conduct in relation to or in respect of matrimonial duties
Cruelty is a course or 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 in determining it. It is a
question of fact and degree. If it is mental, the problem presents
difficulties. First, the enquiry must begin as to the nature of cruel
treatment, second the impact of such treatment in the mind of 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. However,
there may be a case where the conduct complained of itself is bad enough and
per se unlawful or illegal. Then the impact or 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 (See Shobha Rani v.
Madhukar Reddi, AIR 1988 SC 121 and A. Jayachandra v. Aneel Kaur 2005 (2) SCC
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 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.
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 whether the conduct was such that no reasonable person
would tolerate it. It has to be considered whether the complainant should be
called upon to 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.
The foundation of a sound marriage is tolerance, adjustment and respecting
one another. Tolerance to each other's fault to a certain bearable extent has
to be inherent in every marriage. Petty quibbles, trifling differences should
not be exaggerated and magnified to destroy what is said to have been made in
heaven. All quarrels must be weighed from that point of view in determining
what constitutes cruelty in each particular case and as noted above, always
keeping in view the physical and mental conditions of the parties, their
character and social status. A too technical and hyper-sensitive approach would
be counter-productive to the institution of marriage. The Courts do not have to
deal with ideal husbands and ideal wives. It has to deal with particular man
and woman before it. The ideal couple or a mere ideal one will probably have no
occasion to go to Matrimonial Court. (See Dastane v. Dastane, AIR 1975 SC
The instances of cruelty highlighted by the trial Court and also by the High
Court clearly prove that the husband was subjected to mental and physical
cruelty. It is not a fact as submitted by learned counsel for the appellant
that the conviction in the criminal case was the foundation for the decree. On
the contrary, the trial Court clearly mentioned that the aspect was not taken
note of as the appeal was pending.
In view of what has been stated above, the inevitable result is dismissal of
the appeal which we direct. There will be no order as to costs.