Court:PUNJAB & HARYANA HIGH COURT
Bench: JUSTICE Dr. Sarojnei Saksena
UMA WANTI Vs. ARJAN DEV on 12 January 1995
Day-to-day behaviour of Wife disturbed mental peace and harmony of Husband — Amounting to legal cruelty — Wife may not be of unsound mind, but her peculiar ways of behaviour proved by respondent sufficient to constitute legal cruelty.
Appellant-wife had assailed the judgment and decree of the Trial Court passed in HMA Petition No. 30 of 2.6.1987 decided on 28.10.1987.
2. Uncontroverted facts are that the appellant was married with the respondent Arjan Dev on 12.10.1983 at Bhim Nagar, Gurgaon, in accordance with Hindu rites and rituals. The marriage was consummated and appellant gave birth to a female child on 26.12.1984. The child expired after about VA months.
3. The respondent filed a petition for divorce under Section 13(1)(i-a)(i-b)(iii) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) seeking for dissolution to marriage on the ground of unsoundness of mind, cruelty and desertion. Respondent averred that before marriage, it was not disclosed to him that appellant is of unsound mind. Only after marriage, he came to know of her mental disorder which is incurable. From the very first day of matrimonial life, the appellant behaved in a peculiar way, she was not obedient and declined to cohabit. She does not understand the responsibilities of a house wife. She has no sense of living like a wife in a matrimonial home. She does not wash her hands after answering the call of nature. After taking bath sometime, she does not put on clothes properly. She urinates even outside the house. When she was advised not to behave in this manner, she would start crying and tearing of clothes. Her habit of taking her meals was also eccentric. Sometimes, she urinated in her clothes. She is quarrelsome by nature. Sometimes she became violent. Her behaviour is intolerable to the respondent. After the marriage, when a complaint was lodged with the parents of the appellant, her mother promised to get her treated but nothing was done. At the time of delivery, she was taken to hospital by her mother without informing the respondent. When the child became ill, she had left the child at the respondent’s house and went to her parental home. The child expired due to her negligence and carelessness. She left the matrimonial home in Feb., 1984. Since then, she is residing with her parents and has refused to come back to the respondent. Thus, on these counts he prays for dissolution of marriage.
4. The appellant contested the petition, raised preliminary objections about the estoppel, no cause of action and limitation. She denied that she is suffering from any mental disorder or her behaviour was cruel in matrimonial home. She averred that her child died because of her negligence, maltreatment and misconduct of the respondent. She was treated cruelly by her husband. He and his father wanted huge amount in dowry that is the real cause of her misery. In the matrimonial home, she behaved like a dutiful wife. She also denied that her behaviour was abnormal or anti-social. She did not leave the matrimonial home on her own. Rather, the respondent turned her out from his residence on 29.12.1984 after beating her and, thereafter he never came to bring her back. The respondent took her to the hospital for delivery and after delivery also she went to her matrimonial home and therefrom, she was turned out on 29.12.1984. It is also denied that she has withdrawn from the society of the respondent for a continuous period of two years.
5. Parties adduced evidence in support of their contentions. Relying on the respondent’s evidence, the Trial Court held that the respondent has proved the grounds of cruelty and desertion and, the decree of dissolution of marriage was passed.
6. Appellant’s learned Counsel contended that the Trial Court has correctly held that the respondent has failed to prove that the appellant is suffering from any mental disorder but despite this finding the Trial Court came to the conclusion that the respondent has proved the grounds of cruelty and desertion. Even if it is to be believed that the appellant behaved in the way in which the respondent has alleged, that behaviour of the appellant does not amount to cruelty vis-a-vis the respondent. After the delivery of a female child, she was turned out from the matrimonial home by the respondent himself and since then she is living in her parental home. Respondent cannot take advantage of his own wrong and seek a decree of dissolution of marriage on the ground of desertion.
7. Relying on Smt. Sulekha Bairagi v. Prof. Kamla Kanta Bairagi and Another, AIR 1980 Cal. 370, he contended that even after amendment (Marriage Law Amendment Act, 1976), the legal requirement is that the respondent has to prove that the cruelty is of such a nature as to give rise to a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the appellant. Normal lapses in day to day life will not constitute legal cruelty. He further pointed out that simply on the ground that from 29.12.1984 the parties are living separately, it will not prove the ground of desertion. The respondent is required to prove further that the appellant had no intention to live with him when she parted his company. For this proposition, he has placed reliance on Amarjit Kaur v. Babu Singh, (1988-1) 93 PLR 131.
8. Respondent’s learned Counsel stressed that the respondent has stated on oath how the appellant behaved in an abnormal way while she was living with him in the matrimonial home. He has categorically stated that on the first night she did not permit him to cohabit with her. She used to come out from the bath room sometimes undressed, and sometimes not fully dressed. After answering the call of nature, she did not wash her hands. She used to sit for urination in the gali. Whenever he advised her she used to quarrel with him. She used to wonder in the Gali. Without taking permission from him she used to go to her parental home. She never did any household work. Before marriage, this mental condition was not disclosed to him. He made a complaint to her father who promised to get her treatment done. She stayed with him for three months. He went alongwith his wife to her parental home and left her there but thereafter she was not subjected to any medical treatment and she never came back to him for the delivery also. She was taken to the hospital by her mother without informing him. When the child became ill, she was left at his residence while the appellant went back to her parental home. The child died because of her negligence. He has further stated that during the course of the trial under the orders of the Court he was taking the appellant with him to his house in a rickshaw but on the way she got down from the rickshaw and went back to her parents’ house. In the cross-examination, he has categorically stated that he never met her before marriage and hence he had no occasion to know about her mental disorder. His witnesses Bhim Sain PW2; Lachman Dass PW 3 and Heera Nand PW4 have corroborated his testimony on the point of mental disorder. The respondent’s learned Counsel stressed that the appellant did not enter the witness-box to rebut the testimony of the respondent. She has not even examined her mother to refute the allegations made by the respondent. She has only examined Dhano at RW1 and Nand Lal PW2. Dhanoat has clearly stated that he did not know the cause of the quarrel between the two. Nand Lal is the father of the appellant. He has denied that the appellant is of unsound mind. According to him, she has studied up to 10th class. He has testified that respondent wanted Rs. 50,000/- from him to purchase a house. Since he declined, he refused to bring her daughter, but this fact is not put to the respondent in cross-examination. In support of his contentions, he has relied on Ashim Ranjan Poddar v. Smt. Anusree Poddar, 15 MLJ (Suppl.) 109; Sunderi Devi v. Ram Lal, 1994 (2) HLR 84 (P & H); Asha Rani v. Raj Kumar, 1994 (2) HLR 114 (P & H); Smt. Lalita v. Om Prakash, 1994 (2) HLR 124 (P & H); and Smt. Arminder Kaur v. Major Narinder Singh Brar, 1992 MLR 487.
9. In this case, it is pertinent to note that the appellant wife has not entered the witness-box to rebut on oath the testimony of the respondent. The respondent has objected to the abnormal behaviour and way of living of the appellant. These facts are within the personal knowledge of the appellant. She was required to enter the witness-box to deny the said assertions of the respondent but under the advice of her Counsel, she declined to enter the witness-box. Even her mother had not entered the witness box to deny the allegations that she took the appellant to the hospital for delivery or after the delivery she was brought back to her house from the hospital. No doubt, the female child died after a short span of about 45 days, may be due to negligence or carelessness of either of the two. But so far as her behaviour in the matrimonial home is concerned, there is no reason to disbelieve the respondent’s evidence which is not controverted by the appellant. These small twigs of abnormal behaviour when piled, one upon another became a heavy burden of “cruelty”. This mental torture was more heavier than any physical torture. Under the Act, cruelty is not defined, but it is settled law that if the cruel behaviour of one spouse is of such a nature as to give rise to a reasonable apprehension in the mind of other spouse, that it will be harmful or injurious on the other one to live with the first spouse, it constitutes a legal cruelty. The day-to-day behaviour of the appellant was such as to disturb the mental peace and harmony of the respondent which definitely amounted to legal cruelty. She may not be of the unsound mind, but her peculiar ways of behaviour proved by the respondent are sufficient to constitute that legal cruelty. The husband could not live with peace in the company of the appellant. Peace was always disturbed due to her peculiar ways of behaviour, and thus he cannot be disbelieved that her behaviour was cruel to him. Admittedly, since 29.12.1984, the appellant is residing with her parent. She has not come back to her matrimonial home. Thus, she has forsaken the company of the respondent and thereby she has definitely declined to cohabit with him. This fact itself proved her intention not to cohabit with the respondent. Hence, I find that the Trial Court has not fallen into any error in granting decree of dissolution of marriage on the ground of cruelty and desertion. I hereby affirm that decree and dismiss this appeal with no order as to costs.
10. Alternatively, the appellant’s learned Counsel further contended that permanent alimony to the tune of Rs. 1,50,000/- be awarded to the appellant. As she stands divorced, she needs money for the rehabilitation. The respondent’s learned Counsel contended that the respondent is only an operator in Cinema Hall. He earns Rs. 700/- per month only, out of which he is paying Rs. 200/- per month as maintenance to the appellant. Hence, he is not in a position to pay such a huge amount to the appellant by way of permanent alimony. No doubt, he is willing to pay a reasonable amount of about Rs. 18,000/20,000/-. Considering the facts and circumstances of the case, the respondent is hereby directed to pay Rs. 35,000/- to the appellant as permanent alimony within a period of four months. If he fails to make this payment within the stipulated time, the decree of divorce shall automatically stand vacated.
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