Gurbux Singh Vs Harminder
Kaur
J U D G M E N T
P. Sathasivam, J.
1) The appellant, a Principal
in ITI College, Sirhali, Amritsar, has approached this Court against the
judgment and final order dated 11.05.2007 of the High Court of Punjab & Haryana
at Chandigarh in FAO No. 252-M of 2006 whereby the learned single Judge dismissed
the appeal filed by him against the judgment and order dated 11.10.2006 of the Additional
District Judge (Ad hoc), Amritsar, dismissing the petition filed under Section
13 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act")
for a decree of divorce against the respondent-wife, who is working as a Librarian
in Government Institute DIET at Verka, Amritsar on the ground of `cruelty'. Both
the courts have rejected the claim of the appellant herein on the ground that
he has failed to prove `cruelty' sufficient for grant of a decree of divorce.
The case of the Appellant
2)
a.
On
23.11.1997, the appellant got married with the respondent at Amritsar according
to Sikh rites and customs. Even on the date of marriage, the respondent had been
working as a Librarian in a Government Institute DIET at Verka, Amristar. From the
very beginning, the respondent expressed her dislike towards the appellant and his
family and gradually started misbehaving with them. She started exhibiting short-tempered
behaviour and treated the parents of the appellant with cruelty and disrespect.
The father of the appellant is aged about 80 years and his mother is more than
75 years. In the month of January 1998, on the first Lohri festival after their
marriage, the respondent being annoyed with the appellant on a trivial issue,
abused his mother in filthy language in the presence of their relatives and neighbours
causing immense pain to the entire family. Since then, the respondent started insisting
that she cannot live with the parents of the appellant who are mental and nuisance
in her life and pressed upon the appellant to have a separate abode from his
parents.
b.
On
15.05.1999, a male child was born out of the wedlock. Even after the birth of the
child, there was no improvement in the behaviour of the respondent. She always insisted
that she being financially independent is not in need of the appellant and his
family.
c.
Just
five days before the third birthday of their child i.e. on 10.05.2002,
the respondent, without any justifiable reason left the matrimonial home leaving
the child unattended and went to her parents house and staying there since
then. The appellant having failed in his efforts to bring back the respondent to
the matrimonial home and in view of the consistent cruelty filed HMA Case No.
19 of 2003 before the Addl. District Judge, Amritsar, praying for a decree of
divorce under Section 13 of the Act. The stand of the Respondent
3) In reply to the divorce
petition, while denying all the averments made by the appellant, the respondent
has stated that the appellant is a greedy person and not satisfied with the
dowry articles received in marriage. He always misbehaved and maltreated her and
abused on several occasions. She alleged that the appellant is a habitual drinker
and used to threaten her to kill with poison. She also alleged that the
appellant pulled her hair and gave merciless beatings in the presence of his
parents. Decision of the District Court and High Court
4) By judgment dated
11.10.2006, the Additional District Judge, Amritsar, after analyzing the plea of
both the parties, oral and documentary evidence concluded that the appellant-husband
failed to substantiate the allegations of `cruelty' and dismissed his
divorce petition. Aggrieved by the same, the appellant approached the High
Court by filing FAO No. 252-M of 2006. The learned single Judge of the High Court,
by the impugned order dated 11.05.2007, while agreeing with the conclusion of the
Additional District Judge dismissed the appeal filed by the appellant. Questioning
the above said orders, the appellant has filed the present appeal by way of special
leave petition.
5) Heard Mr. Vinay Kumar
Garg, learned counsel for the appellant and Mr. Seeraj Bagga, learned counsel for
the respondent
6) The only question for
consideration in this appeal is whether the appellant-husband has made out a case
for divorce on the ground of `cruelty' by the respondent-wife.
7) Section 13 of the Act
specifies the grounds on which a decree for divorce may be obtained by either
party to the marriage. Though in the divorce petition filed before the
Additional District Judge, Amritsar in HMA No. 19 of 2003, the appellant had
sought divorce merely mentioning Section 13 of the Act for dissolution of
marriage by decree of divorce, and did not specify the grounds on which he is
entitled to decree of divorce. In the petition, the appellant has highlighted only
one aspect, namely, that after the marriage, in the month of January
1998, on first festival of Lohri, when they were enjoying the festival, the
respondent-wife abused his mother and the father in the presence of relatives and
neighbours. In para 6 of the petition, the appellant has alleged that: ".....She
called nuisance, idiot and mental to the parents of the petitioner and the respondent
openly said that she did not want to live with the petitioner if he live with his
old parents." In para 10, the appellant has stated: "That on 10th May
of 2002, the respondent left her matrimonial home without giving any information
to any member and she also left her child in the matrimonial home this shows that
the respondent did not have any love and affections towards petitioner and his
family members. She is living in her parental house for the last more than one
year. Hence, the necessity has been arisen to file the present petition....."Except
the above allegations, the appellant has not highlighted any other instance(s) about
cruelty by the respondent. Though learned counsel for the appellant attempted to
argue "desertion", in the absence of any plea/evidence and material,
we disallowed him to pursue the said point.
8) In the reply to the
petition under Section 13 of the Act, the respondent has highlighted her stand and
in fact denied all the allegations against her. She also projected her case that
the custody of the child was forcibly taken by the appellant when she returned
from her matrimonial home. She also highlighted that the appellant used to
force her to bring cash from her parents as he wanted to purchase a car in the
month of February 2000. When she refused to bring cash, she was mercilessly beaten
by the appellant. She also stated that in February 4, 2000, her parents gave
Rs. 50,000/- to the appellant and thereafter the appellant agreed to keep the respondent
in her matrimonial home. She also alleged that the appellant is habitual of
taking liquor and under influence of liquor, he used to beat her. She further
alleged that the appellant's maternal uncle's daughter used to interfere in
their family affairs.
9) Apart from the above pleadings,
both parties filed statement in the form of an affidavit/petition and also let
in evidence reiterating their respective pleas. As discussed earlier, the only
instance highlighted by the appellant for divorce was that the respondent-wife
abused his parents on the day of festival of Lohri in the presence of
relatives and neighbours.
10) In Samar Ghosh vs.
Jaya Ghosh, (2007) 4 SCC 511, a three-Judge Bench of this Court while considering
Section 13(1)(i-a) of the Act laid down certain guidelines. The analysis and ultimate
conclusion are relevant which reads as under:-
"98. On proper analysis and scrutiny of the judgments of this Court and other
courts, we have come to the definite conclusion that there cannot be any comprehensive
definition of the concept of "mental cruelty" within which all kinds
of cases of mental cruelty can be covered. No court in our considered view should
even attempt to give a comprehensive definition of mental cruelty. Human mind is
extremely complex and human behaviour is equally complicated. Similarly human
ingenuity has no bound, therefore, to assimilate the entire human behaviour in one
definition is almost impossible. What is cruelty in one case may not amount to
cruelty in other case. The concept of cruelty differs from person to person depending
upon his upbringing, level of sensitivity, educational, family and cultural background,
financial position, social status, customs, traditions, religious beliefs, human
values and their value system. Apart from this, the concept of mental cruelty cannot
remain static; it is bound to change with the passage of time, impact of modern
culture through print and electronic media and value system, etc. etc. What may
be mental cruelty now may not remain a mental cruelty after a passage of time
or vice versa. There can never be any straitjacket formula or fixed parameters for
determining mental cruelty in matrimonial matters. The prudent and appropriate way
to adjudicate the case would be to evaluate it on its peculiar facts and
circumstances while taking aforementioned factors in consideration 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:
(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.
(i)
On
comprehensive appraisal of the entire matrimonial life of the parties, it
becomes abundantly clear that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and continue to live with other
party.
(ii)
Mere
coldness or lack of affection cannot amount to cruelty, frequent rudeness of
language, petulance of manner, indifference and neglect may reach such a degree
that it makes the married life for the other spouse absolutely intolerable.
(iii)
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.
(iv)
A
sustained course of abusive and humiliating treatment calculated to torture,
discommode or render miserable life of the spouse.
(v)
Sustained
unjustifiable conduct and behaviour of one spouse actually affecting physical and
mental health of the other spouse. The treatment complained of and the
resultant danger or apprehension must be very grave, substantial and weighty.
(vi)
Sustained
reprehensible conduct, studied neglect, indifference or total departure from the
normal standard of conjugal kindness causing injury to mental health or
deriving sadistic pleasure can also amount to mental cruelty.
(vii)
The
conduct must be much more than jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and emotional upset may not be a ground
for grant of divorce on the ground of mental cruelty.
Mere
trivial irritations, quarrels, normal wear and tear of the married life which
happens in day-to-day life would not be adequate for grant of divorce on the ground
of mental cruelty.
(viii)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.
(ix)
If
a husband submits himself for an operation of sterilisation without medical reasons
and without the consent or knowledge of his wife and similarly, if the wife undergoes
vasectomy or abortion without medical reason or without the consent or
knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(x)
Unilateral
decision of refusal to have intercourse for considerable period without there being
any physical incapacity or valid reason may amount to mental cruelty.
(xi)
Unilateral
decision of either husband or wife after marriage not to have child from the
marriage may amount to cruelty.
(xii)
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."
11) A Hindu marriage
solemnized under the Act can only be dissolved on any of the grounds specified
therein. We have already pointed out that in the petition for dissolution of marriage,
the appellant has merely mentioned Section 13 of the Act and in the body of the
petition he highlighted certain instances amounting to cruelty by the respondent-wife.
Cruelty has not been defined under the Act. It is quite possible that a
particular conduct may amount to cruelty in one case but the same conduct
necessarily may not amount to cruelty due to change of various factors, in different
set of circumstances. Therefore, it is essential for the appellant, who claims
relief, to prove that a particular/part of conduct or behaviour resulted in
cruelty to him. No prior assumptions can be made in such matters. Meaning
thereby that it cannot be assumed that a particular conduct will, under all
circumstances, amount to cruelty, vis-`-vis the other party. The aggrieved
party has to make a specific case that the conduct of which exception is taken
amounts to cruelty. It is true that even a single act of violence which is of grievous
and inexcusable nature satisfies the test of cruelty. Persistence in inordinate
sexual demands or malpractices by either spouse can be cruelty if it injures the
other spouse. There is no such complaint by the appellant. In the case on hand,
as stated earlier, the appellant has projected few instances in which, according
to him, the respondent abused his parents. We have verified all the averments in
the petitions, reply statement, written submissions as well as the evidence of
both parties. We are satisfied that on the basis of such instances, marriage
cannot be dissolved.
12) The married life
should be assessed as a whole and a few isolated instances over certain period
will not amount to cruelty. The ill-conduct must be precedent for a fairly
lengthy period where the relationship has deteriorated to an extent that because
of the acts and behaviour of a spouse, one party finds it extremely difficult to
live with the other party no longer may amount to mental cruelty. Making
certain statements on the spur of the moment and expressing certain displeasure
about the behaviour of elders may not be characterized as cruelty. Mere trivial
irritations, quarrels, normal wear and tear of married life which happens in
day to day life in all families would not be adequate for grant of divorce on
the ground of cruelty. Sustained unjustifiable and reprehensible conduct
affecting physical and mental health of the other spouse may lead to mental cruelty.
Both the appellant and respondent being highly qualified persons, the appellant
being Principal in ITI College, the respondent working as a Librarian in a Government
Institute, an isolated friction on some occasion like festival of Lohri even in
the presence of others cannot be a valid ground for dissolving the marriage.
13) Learned counsel appearing
for the appellant by drawing our attention to certain allegations made by the
respondent-wife in the reply to the petition under Section 13 of the Act before
the Addl. District Judge submitted that by considering all these aspects it is just
and reasonable to consider and grant divorce on the ground of cruelty. In
support of the same, he relied on the decision of this Court in Vijaykumar Ramchandra
Bhate vs. Neela Vijaykumar Bhate, (2003) 6 SCC 334. No doubt in that decision,
this Court has held that allegations made in the written statement or suggested
in the course of examination and by way of cross-examination satisfying the
requirement of law has also to be taken note of while considering the claim of
either party. In the case on hand, it is true that the respondent-wife has made
certain allegations against her husband-appellant. However, admittedly based on
the same, the trial Court has not framed any issue and no evidence let in
support of the same. In such circumstances, the said decision is not helpful to
our case. Admittedly, no such issue was framed by the trial Court or any point
determined by the High Court based on such averments in the reply/written
statement. Accordingly, we reject the said contention.
14) As regards the allegations
about beating her child and not feeding him, the High Court, after analyzing the
entire materials, disbelieved the same. It is also brought to our notice that
the appellant condoned the alleged act of cruelty as he wanted to bring back the
respondent to his house. As such, the allegations of cruelty do not appear to
be truthful. It is also proved that the appellant is not interested to keep the
respondent as his wife and he wants divorce by any means. As observed earlier,
except the grounds enumerated in Section 13, a Hindu marriage solemnized under the
Act cannot be dissolved on any other grounds.
15) Finally, a feeble argument
was made that both the appellant and respondent were living separately from
2002 and it would be impossible for their re-union, hence this Court exercising
its jurisdiction under Article 142 of the Constitution their marriage may be dissolved
in the interest of both parties. Though, on a rare occasion, this Court has granted
the extraordinary relief de hors to the grounds mentioned in Section 13 in view
of the fact that the issue has been referred to a larger Bench about
permissibility of such course at present, we are not inclined to accede to the
request of the appellant. If there is any change of law or additional ground included
in Section 13 by the act of Parliament, the appellant is free to avail the same
at the appropriate time.
16) In the light of the
above discussion, we are unable to accept the claim of the appellant; on the other
hand, we are in entire agreement with the conclusion arrived at by the Addl. District
Judge as well as the High Court. Consequently, the appeal fails and the same is
dismissed with no order as to costs
..........................................J.
(P. SATHASIVAM)
..........................................J.
(DR. B.S. CHAUHAN)
NEW
DELHI
OCTOBER
8, 2010
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