Court:DELHI HIGH COURT
Bench: JUSTICES A.B. Rohtagi and Gian Chand Jain
Kamini Gupta Vs. Mukesh Kumar Gupta On 22 November 1984
Charges of immorality levelled by wife against husband were reckless and entirely baseless. Further, wife’s own evidence before Court led credence to husband’s case that wife insulted and humiliated him by false accusations and injurious reproaches. Wife’s charges were deliberate, willful, injurious and persistent – Thus, it was clear that re-establishment of matrimonial relationship was not possible. Decree of divorce in favour of husband on ground of cruelty.
1. The whole and sole question in this appeal is whether the husband, whom the wife calls a womaniser and a drunkard is entitled to a decree of divorce on the ground of wife’s cruelty. A learned single Judge of this Court on facts has returned the finding in favour of the husband. From his decree the wife appeals to this Court.
2. The parties were married on 6-6-1971. On 19-6-78 they separated and have since then been living apart. There are four daughters of the marriage. They are in the custody of the husband. The husband filed the petition for divorce in June 1979 on the ground of cruelty. In the petition in para 55 the husband alleged that at a meeting held on 3-7-1978 in the presence of the parties relations when negotiations for the resettlement of the parties were afoot the wife lost her temper and started abusing him and called him a womaniser and a heavy drunkard. She complained in the meeting that the husband has been bringing girls in the matrimonial home. As a result of the imputations and accusations the talks of reconciliation broke down. This was the husband’s positive case in the petition. In her written statement the wife replied that she never falsely accused the character of the petitioner suggesting thereby that the charges levelled against the husband were not false.
3. When the case came to trial the wife in her evidence repeated these charges times out of number. In her statement she named three girls with whom the husband had extramarital relations. They were Rupa, Mamta and Alka Sayal. According to her they are just few examples of conjugal infidelities of the husband. About Rupa, the wife said that she was a cabaret dancer. When the parents of the husband were away to Simla one night the husband brought Rupa to the house and started drinking with her. The wife was present. Afterwards the husband wanted to ‘indulge in sex with Rupa. This the wife could not stand. So in utter disgust she withdraw herself from the room where the husband and Rupa were staying. Rupa stayed for the whole night, she says.
4. Mamta is another girl of ill-repute with whom the husband carried on. The wife said that Mamta worked in the husband’s office in. Kamla Nagar. “I have seen Mamta myself when she came to our house.” She said in evidence.
5. Regarding Alka Sayal the wife narrated that she was working in the factory of the husband at Naraina. She stated that her husband had married her and she was pregnant from him. She wanted to prove all this in Court. Alka Sayal’s father, wife alleged, came to her father and was prepared to give evidence in the case to prove the husband’s lecherous character. The wife accordingly made an application for amendment of the written statement. This was allowed. She set up the case of husband’s adulterous association with Alka. Then she wanted an opportunity to produce Alka’s father in evidence. This was also given. But Alka’s father was never produced in the case.
6. The trial Judge has disbelieved the evidence of the wife. He had the advantage, denied to us, of seeing her in the witness box. He found her a woman of aggressive nature. He found as a fact that the accusations are false and unjustified. About Rupa he says that it is a story invented by the wife in order to malign the husband. The building in which the husband was staying had more than 20 flats. Most of them were occupied by judicial officers and colleagues of the husband’s father. The husband’s father was at the relevant time an Additional District Judge in. Delhi. Just opposite the husband’s father flat was the flat of their near relation. In this environment it seems most unlikely that the husband will bring a cabaret dancer to the flat who will stay throughout the night in the house in wife’s presence. The case of husband’s sexual relationship with Mamta and Alka Sayal equally remained unproved, There is no cogent evidence on the record that the husband was a philanderer or that he was flirting with girls or dangling after women.
7. On this evidence the learned Judge found that the charges of immorality levelled by the wife against the husband are reckless in the extreme and entirely baseless. He came to the conclusion that the accusation of the wife that the husband was a womaniser “would necessarily cause mental injury to the petitioner and it is difficult for any reasonable person to live with a spouse who repeatedly keeps on taunting the other spouse and levels such unfounded allegations.” He therefore held that it was impossible for the parties to live together. So he granted a decree of divorce on the ground of cruelty.
8. We have heard counsel for the parties at great length. Mr. Sharma on behalf of the wife has referred us to a number of rulings in support of his contention that the trial Judge’s approach is wholly wrong. He criticised the judgment mainly on the ground that the learned Judge was not justified in granting decree of divorce on this single count when the husband had failed before him on adl others. Mr. Rawal on behalf of the husband, on the other hand, has taken us through the evidence to showed, on the other hand, has taken us through the evidence that the wife throughout her evidence has wilfully persisted in her stand that the husband is a womaniser and a drunkard. Not only did she say so in her written statement she was also tried unjustifiably to prove that the husband is a thoroughly bad lot and each time he had different woman for his pleasure. Counsel submitted that there was ample evidence for the conclusion arrived at by the learned Judge.
9. On behalf of the wife, counsel argued that there is no independent evidence that the wife called the husband a womaniser and drunkard at the meeting of 3-7-1978. We do not agree. The husband has affirmed this. The wife’s own evidence before the Court lends credence to the husband’s case that the wife insulted and humiliated him before the relations by false accusations and injurious reproaches. In Court she said: “The accusation which T have been levelling are correct according to me.” If she is prepared to say this in Court she would have no compunction to say the, same before others. From a reconciliation meeting to Court it is a short step. Both are places for ventilation of charges and counter-charges and mutual suspicions.
10. Counsel for the wife said that the wife is not guilty of cruelty because the husband has not shown that his health was in any way endangered. This is a fallacious argument. Cruelty here is not of violent acts but of injurious reproaches, complaints, accusation or taunts. We would adopt as correct the following passage in Raydon. On Divorce 14th (1983) ed Vol. I page 235.
In all these cases the totality of the evidence of the matrimonial history must be considered, and the conclusion will depend on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of view, after a consideration of any excuse or explanation which this respondent might have in these circumstances, the conduct is such that this petitioner ought not to be called upon to endure it.
11. The incidents and quarrels between the spouses must be weighed from the point of view of impact of the personality and conduct of one spouse on the other. Judges do and should read the minds of the parties, Lord Reid has told us.
12. Actual intention to hurt is plainly present in this case. Conduct which is intended to hurt strikes with a sharper edge than conduct which is the consequences of mere obtuseness or indifference. The wife as a reasonable person would know the impact that her accusation would have on the husband, whether thick skinned or sensitive. The conduct must be judged by a reference to the victim’s capacity for endurance. The test is: Have the matters come to such a pass and such a pitch of persistence and intensity that the maintenance of matrimonial relation is no longer possible? Having regard to these individual spouses, it appears to us that the husband cannot reasonably be expected to live with the wife. Cohabitation between them is virtually impossible. This is the liberalized concept of cruelty adumbrated in the reformed law of divorce as amended in 1976. It is settled now that physical violence is not a necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. In Keshaorao v. Nisha MANU/MH/0272/1984 : AIR 1984 Bom. 413 (FB) we have a recent reformulation of the concept of cruelty. We respectfully agree with the restatement of the Saw there.
13. Applying these principles we are of the opinion that there is no future of this marriage. The trial Judge treated it as a case of character assassination. In our view the wife has persisted in her accusation which any reasonable person would regard as calculated to bring the matrimonial union to an end. She set out on a course of conduct with the deliberate intention of wounding and humiliating the husband and making his married life unbearable. This is the cumulative effect of the evidence.
14. In numerous cases the High Courts have held that making reckless allegations of immorality against the other spouse amounts to mental cruelty. (See Krishah Rani v. Chunni Lal MANU/PH/0141/1981 : 1981 Hindu LR 16 : AIR 1981 Punj & Har 119; Om Prakash v. Shakuntala 1981 HLR 92 (Raj); Jeevan Lata v. Krishan Kumar 1979 HLR 599 (P&H). In Dastane v. Dastane MANU/SC/0330/1975 : 1975 Hindu LR 111 : AIR 1975 SC 1534 the Supreme Court has said that injury to reputations is an important consideration in determining the question of cruelty. Wife’s temperament in taking delight in causing injury to the husband and his relations constitutes cruelty.
15. In our opinion the wife has made it insufferable for the husband to live with her. Any man with reasonable self-respect and power of endurance will find difficult to live with a taunting wife, when such taunts are in fact insults and indignities, Human nature being what if is, a reasonable man’s reaction to the conduct of the offending spouse is the test. This is our conclusion on the totality of the evidence.
16. It is not possible to compartmentalize the concept of cruelty. Nor are there categories of cruelty. In each case the facts have to be considered. The whole matter must be taken together. The picture of the domestic lives of this man and this woman in this case must be surveyed as a whole before a true judgment can be formed of their possible future relations. No effort to re-establish the marriage will produce any result, it seems, because the charge of associations with woman is as cruel a charge as any wife can bring against the husband, It seems to us that in this case the reestablishment of the matrimonial relationship is not possible in view of the injurious reproaches, complaints, accusation and taunts of the wife. Her evidence is full of them. In her cross-examinations of the husband and his father her sole aim was to establish that the husband is lewd and lascivious and given to excessive drinking. Throughout she has rubbed in her accusations without any penitential sentiment. To the husband’s father a judicial officer, she went to the length of suggesting that his assets were disproportionate to his means – a question which we think was entirely irrelevant to the matters in controversy. This in question shows how the wife was prepared to make even the father-in-law a target for insult. This one question is the reflex of conjugal bitterness and domestic discord. A malevolent intention to inflict pain and misery is all that one sees in her cross-examination.
17. Judges have always carefully refrained from attempting a comprehensive definition of cruelty for the purposes of matrimonial suits, and experience has shown the wisdom of this course. There are no categories of cruel conduct. Nor compartments. The doctrine of danger of life and limb is no longer in the ascendant Mental cruelty is now well recognised as ground for divorce.
18. Every act must be judged in relation to its attendant circumstances, and the physical or mental condition or susceptibilities of the innocent spouse and the intention of the offending spouse are all matters of decisive ‘ importance. On the facts of this case we find there is sufficient proof of an intention to disrupt the home. The wife’s behaviour of itself establishes an intention to break up the married life. The Judges have evolved a pragmatic test, namely whether there is any practical possibility of the parties living together in connubial happiness. Apply this test here. See the state of the union. Our answer is in the negative as was of the learned Judge.
19. The wife made an application in the appeal to allow her to withdraw her allegations against the husband. We cannot accede to this request. The husband’s case is founded on these accusations. That is his cause of action, Cruelty is based on past behaviour. It is not a case where the wife makes a charge of immorality in the written statement for the first time of which the husband should not be allowed to take advantage. The wife’s charges are deliberate, wilful, injurious and persistent. It is not a case of single outburst. It is not a case of mere pinpricks. It is a case of a course of conduct persisted in by the wife right up to the end with a view to wound and humiliate the other spouse. The taunts, reproaches and accusations are the refrain of her evidence.
20. Suppose we allow the wife’s charges to be withdrawn will it do any good to their matrimonial relations? We think not. The broken home will not be rebuilt. We cannot, rekindle the fire of conjugal love in their hearts. Their marriage was a love marriage. We are told. They were lovers once. But now they are like oil and water. Once they went hand in, hand. It is true. But now the marriage is shattered and is in ruins.
21. We are, therefore, of the opinion that the decree of divorce was rightly granted by the learned single Judge. We accordingly dismiss the appeal in limine.
22. We announced the order on 19-11-1984 at the conclusion of the hearing. Now we have given our reasons. Though we were not bound to give reasons, out of deference to counsel’s argument we thought it proper to give a detailed order.