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M.k. Malhotra Vs. Kirti Malhotra

Judgement

Court: Delhi High Court

Bench: JUSTICE S.S. Chadha

M.k. Malhotra Vs. Kirti Malhotra On 18 December 1986

Law Point:
Husband suffered mental cruelty during the period the complaint of the Wife against the Husband was being investigated and enquired into by the Govt. The Wife made accusation and imputation during the trial against the Husband and this caused more pain and misery than the physical beating. It appears to me that the Husband cannot be reasonably expected to live with the Wife and cohabitation between them is virtually impossible.

 

 

JUDGEMENT

 

1.This appeal Under Section 28 of the Hindu Marriage Act, 1955 (hereinafter called the Act) is directed against the judgment dated August 31, 1985 passed by Shri R.C Jain, Additional District Judge, Delhi dismissing the husband’s petition under Section 13(1)(i)(a) of the Act.

2. The parties were married on January 21, 1976 at Delhi according to Hindu rites, customs and ceremonies. They resided and cohabited at Delhi and a male child called Miki was born on December 20, 1976. The allegations in support of the petition for a decree of divorce on ground of cruelty and the particulars of the cruelty as given therein are these. The respondent is alleged to have entered her marital-home with a preconceived notion that she was not only educated but earning too and, therefore, she was much superior to her mother-in-law and for this reason the respondent started treating the appellant’s mother as the maid servant of the house and humiliated her with insults and abuses frequently. The second incident is that in the first week of January, 1977 the appellant’s family received alarming telegrams that the appellant’s sister who was pregnant, was seriously ailing at Katni and his mother was compelled to go to Katm to see her ailing daughter. The respondent is alleged to have objected to her going to Katni on the ground that there was no body at home to render services to her and her newly born child. The appellant’s mother actually left for Katni on January 10, 1977. The contention is that the respondent felt insulted and incapable of shouldering the household responsibilities solely by herself and she left the home the same day i.e., January 10 1977 alongwith her child without caring for the torture or the difficulties which the appellant would have to undergo in their absence, On return from Katni the mother of the appellant herself along with the appellant went to the parental house of the respondent and brought her back home on April 27, 1977. The third incident is that of December 18, 1977 when the respondent again left the home on the ground that the appellant had given only Rs. 501/- to the respondent’s father on the occasion of the marriage of the respondent’s sister. The respondent’s father is alleged to have been annoyed on this account and so the appellant was not even invited to the function held on the following day when all other relatives had assembled. It is averred that she came back on the following day with her brother to collect all her belongings and ornaments and went back to her parental home the same day where she stayed continuously for as many as 10 months. On October 8, 1978 with the intervention of some mutual friends, the appellant brought back the respondent to his home. A grievance is made by the appellant that the respondent even after the marriage ensured to uphold her unrestricted freedom of movement without any care for marital responsibilities and views of her husband. The respondent went out in June, 1976 on a trip to Kashmir along with her friends and it is alleged that it was in total disregard of the protests of the appellant and that the respondent also refused to take the appellant with her on that trip wilfully so that her unrestricted freedom of movement was not hampered. During the period from December 18, 1977 to October 10, 1978 she went to Nepal, Darjeeling and other places again with her friends and it is alleged without even informing her husband what to talk of his consent. It is stated that during December, 1978 and January, 1979 she again wanted to go to Shimla with her friends, but the appellant protested against her intended visit to Shimla which she resented and ultimately left the home on January 10, 1979.

3. Serious allegations are then made that the respondent made false representations to the Prime Minister making baseless allegations against the appellant. The particulars of this cruelty are these. Not only did she make this representation to the Prime Minister but managed to get letters written by a few Members of Parliament. Letters were also addressed to the Home Minister making baseless allegations against the appellant. The Ministry of Home Affairs who are administratively concerned with the employment of the appellant issued a show cause notice and conducted a regular and detailed enquiry at the level of Joint Secretary. The Enquiry Officer came to the conclusion that no misconduct could be attributed to the appellant. A similar enquiry was also conducted by the Office of the Commissioner for Scheduled Castes and Scheduled Tribes who also arrived at the same conclusion. The contention is that the respondent made all these false allegations knowing fully well that the outcome of the enquiry could have resulted in the dismissal of the appellant from Government service which was the intention of the respondent. It is submitted that this was the worst possible cruelty which was perpetuated by the respondent. It is further alleged that during 1979 the appellant had applied for leave to visit his sister in U.K. on a tourist visa. The respondent wrote to the Prime Minister, the Home Minister and tried to prevent the appellant from leaving the country. But the Ministry of Home Affairs who enquired into this aspect also, ultimately decided that the leave applied for by the appellant for the purpose of visiting U.K. could be sanctioned to him. The submissson is that all these instances and efforts on the part of the respondent were intended only to create agony and mental torture to the appellant.

4. In the written statement filed on behalf of the respondent, the plea is that the appellant has filed the petition to save his own skin as the respondent been treated with cruelty at the hands of the appellant. It is alleged that since the beginning of the marriage, the behaviour of the appellant towards the respondent was not tolerable and she was put to mental as well as physical torture by the appellant the allegations of the appellant that the respondent entered the matrimonial house with the preconceived notion are denied. It is pleaded that the respondent was treated with contempt and scold as the respondent had not brought sufficient dowry to fulfil their designs and desires which they expected from the parents of the respondent. The conduct and the behaviour of the appellant and his parents towards the respondent is alleged to be very rude, discourteous, abusive, insulting and humiliating one. The averment is that it was the appellant himself and his parents who have been creating unpleasant scenes and were responsible for throwing out the respondent from the matrimonial home. It is a so denied that the sister of the appellant was ill or she wanted the help of her mother at Katni. It is pleaded that the respondent was forced to leave the house of the appellant on one cold morning of January 10, 1977 when the respondent was having a 21 days male infant in her lap as the appellant and his mother wanted that the respondent should go to her parents’ house after the delivery to avoid expenses. The averments of the appellant regarding Rs. 501/- or its repurcussions are alleged as a concocted story. It is pleaded that during the period the respondent stayed at the house of the appellant, she was continuously under mental tension and torture by the appellant and the behavior of the appellant and his mother was consistently abusive and harsh. The plea is that the respondent was thrown out of matrimonial home on account of lust of money by the appellant and his mother. It is denied that the respondent went to Kashmir without the permission of the appellant. It is pleaded that since October 8, 1978 when the respondent was taken back by the appellant, the appellant has been forcing the respondent to give him the money of the period during which she stayed with her parents. The respondent told the appellant that that money had been spent by her on herself and upon the maintenance of the child. At this the appellant is alleged to have got annoyed and resorted to physical torture to achieve his goal and the repeated explanation of the respondent that she had spent the money on her maintenance and the maintenance of the child could not prevail on the appellant. It is stated that the appellant got furious and gave severe beating to the respondent and turned her out from the matrimonial home just in three clothes which she was wearing on the night of January 18, 1979.

5. It is also denied that the respondent made false representations to the Prime Minister or made baseless allegations against the appellant. It is submitted that the intention of the respondent is very clear from the representation which she made to the Prime Minister. It is denied that any regular or detailed enquiry was conducted or that the Enquiry Officer did not attribute any misconduct on the part of the appellant in the enquiry proceedings. The sending of the representation is admitted and a copy is, in fact filed with the written statement. It is denied that any enquiry was conducted by the Commissioner of Scheduled Castes as nothing has been advised to the respondent. It is denied that the respondent wanted the appellant’s dismissal from service or the allegations were false.

6. Additional submissions are made that the respondent is a working lady and has been serving the Northern Railway in the capacity of a Clerk. She was working in the same Department prior to her marriage with the appellant and on an enquiry by the appellant the respondent told the appellant that she was depositing her salary in the bank account in her name. When the respondent came to the house of the appellant after they got married, the appellant demanded the money lying in the account of the respondent for the purpose of marriage of his younger sister and when told that she has spent the said amount on her own marriage and the balance was nil, he got infuriated. The appellant is alleged to have taken from the respondent all her jewellery, ornaments, clothes and other articles received in Dahej in the marriage.

On the pleadings of the parties, the trial court framed the following issues : —

“(1) Whether the respondent has treated the petitioner with cruelty after marriage, if so, to what effect ?

(2) Whether the petition in the present form is not maintainable because it does not disclose any cause of action ?

(3) Relief.”

On Issue No. 2 it was found that there is no defect or infirmity in the form of the petition which could render it as not maintainable. The issue was decided against the respondent. The trial court noticed the voluminous oral as well as documentary evidence on Issue No. 1 in support of their respective cases and discussed the same in great detail in his judgment. The findings on a number of instances of the alleged cruel acts and conduct of the respondent are then recorded. I feel no necessity to reappraise the whole evidence in great detail but would restrict it in relation to the complaints made by the respondent to the Prime Minister against the appellant and the resultant enquiry. That findings on the other acts are these : —

(a) The respondent visited Kashmir in June, 1976 and the question is whether it was against the consent and wishes of the appellant. The respondent was about three months pregnant at that time, it is in evidence (RW 2 respondent) that the trip of Kashmir was open only to the employees of the Railway Department including Welfare Inspectors, children and female employees. RW 2 stated that she had gone to Kashmir alongwith a children’s camp with the permission of the appellant and that he saw her off at the railway station and he took her luggage to the railway station. This testimony is corroborated by RW 1 Miss Inderjit who had also gone on the Kashmir trip. A trip made with consent does not amount to cruelty. The trip was optional and not compulsory and the respondent opted to go on this trip without her spouse. Her conduct may be blameworthy but no inference of cruelty can be drawn from this conduct of the respondent.

(b) There is no cogent and reliable evidence on the record in support of the alleged maltreatment, misbehaviour etc. of the respondent towards the mother of the appellant. The respondent deposed that she never treated the family members of the appellant in any arrogant or harsh manner during her stay at her matrimonial home. No cross-examination worth considering has been directed to this statement. The mother of the appellant has not entered the witness box.

(c) Another act of cruelty alleged is the conduct of the respondent leaving the matrimonial home alongwith the infact on January 10, 1977. The mother of the appellant left for Katni on January 10, 1977 to take care and look after the appellant’s sister. The evidence is evenly balanced on the extent of ailment of the appellant’s sister, as the appellant and her sister’s husband both shifted the ground during cross-examination and there are various discrepancies. The testimony of the appellant is that he received a telegram from his sister at Katni about her illness, that his mother decided to go there and that this was not liked by his wife and she left the home on the same date with the child. The respondent’s statement is that the mother herself left the house thereby leaving no one at the matrimonial house to take post-natal care of the respondent and the infact child was only 21 days old and that finding no alternative and against her wishes she had to leave the house or the asking of the appellant and to take shelter at her parent’s house. I am only noticing this conduct of the parties not with a view to give a finding on the question of cruelty as the same stands totally condoned when the respondent was brought back on April 27, 1977 and the parties cohabited and lived together till December 1977.

(d) The act of the respondent visiting Nepal, Darjeeling and other places during December 18, 1977 to October 18, 1978 is alleged as cruel treatment of the appellant. The respondent visited only Darjeeling during this period and of course without the consent and knowledge of the appellant as the respondent was staying at her parents’ house at that time as the result of separation between the two. There could be no cruelty towards the appellant.

(e) A grievance is also made by the appellant that during December, 1978 and January 1979 she again wanted to go to Shimla with her friends. The fact remains that she did not visit Shimla and any attempt on her part even if it is true, cannot be brought within the fold of cruel treatment.

Admittedly the respondent came back to matrimonial home on October 18, 1978 and lived there till January 18, 1979. The parties cohabited and lived together till January 18, 1979. This would amount to a condonation of any acts of cruelty complained of against each other. As held by the Supreme Court in “Dr. N.G. Dastane v. Mrs. S. Dastane”, I (1981) DMC 293 (SC)=AIR 1975 SC 1534, condonation means forgiveness of the matrimonial offence and the restoration of offending sposuce to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. The respondent states that at the intervention of Shri Wadhawan, appellant again took her to his house in October 1978. The parties cohabited till January 18, 1979. The inference from this conduct of the parties is irresistable that the respondent came at the intervention of Shri Wadhawan and others to lead and live a normal sexual life with the appellant even after a series of acts of the cruelty alleged by them against the other. Any previous act of the parties even amounting to cruelty stands condoned and no decree can be passed on it. I have noticed these acts of cruelty only with a view that they are relevant for a consideration of the offending cumulating conduct or its seriousness together with acts of cruelty in condonation seen from the point of a reasonable person. II the subsequent conduct is such, seen not in isolation but to the whole of the marital relations that the appellant ought not to be called to endure it, then the court may grant a decree of divorce.

7. That takes me to the consideration of the complaints made by the respondent to the Prime Minister, and to the Home Minister against the appellant. The averment of the appellant is that the complaint itself contained baseless allegations against the appellant including mental torture by making taunts, abuses and filthy language; those of physical assault; dowry and other demands and threat of physical harm to herself and members of her family (father’s side). The contention is that the respondent knew fully well that the outcome of any enquiry could have resulted in the dismissal of the appellant from Government service which was the intention of the respondent. It is urged that this was the worst possible cruelty which was perpetuated by the respondent. A copy of the representation made to the Prime Minister was filed by the respondent herself alongwith the written statement. It is denied that the respondent made false representation to the Prime Minister or made baseless allegations against the appellant. It is urged that the representation was made with the sole object that she may get redressal of her grievances through the official machinery. A copy of the representation dated January 20, 1979 is Ext. PW 5/1 (RW2/P1). In brief the allegations are : —

(i) Firstly it narrates the alleged demand of dowry by the appellant. It is stated that the appellant showed his dissatisfaction in whatever the respondent’s father had given in the shape of ornaments, clothing etc., that being a man of a varicious nature could not be contented with the affection and devotion bestowed upon him by her as his dutiful wife, and that he started putting her to mental torture but she somehow or other carried on with the vain hope that every thing would be alright in due course of time.

(ii) It is then stated that after his hopes of getting a substantial dowry were shattered he asked her to bring Rs. 5000/-, the amount she had earned during her service prior to the marriage, that when told that the said amount had been utilised on her marriage itself and she had not got a penny out of those earnings, this infuriated him and the mental torture which was confined to casual taunts hitherto turned into regular taunts, abuses and filthy language.

(iii) She was driven out of the house on January 10, 1977 at 8.00 A.M. with her child only 21 days old but with the intervention of her uncle Shri S.L. Wadhawan she was taken back home by her husband in April 1977 but the situation worsened and manhandling was added to the mental torture she was being subjected to.

(iv) In September, 1977, she was again beaten up severely and she had no choice but to leave the house but her father and uncle Shri S.L. Wadhawan took her back to her husband’s home and left her there on the same date after the appellant expressed regrets for his behaviour.

(v) The appellant asked her to get loan of Rs. 5000/- from either Provident Fund account or Co-operative Society for performance of his sister’s marriage; but she refused because of his behaviour through their matrimonial life.

(vi) The appellant had threatened to take revenge on her by disfiguring permanently, disabling herself, her only brother and her father and that he even told that he would get both her father and brother killed in a hit and run road accident or otherwise and would escape as he had good connections with the police being in Home Ministry.

Before considering the evidence of the parties or truth or otherwise of the allegations made in the complaint of the respondent it is necessary to express as to what is cruelty. The Courts have refrained from attempting a definition of cruelty. It is not possible to comprehend the human conduct and the behaviour in ail situations and circumstances and for all times to come. The doctrine of danger of life and limb, urged by Shri J.K. Seth, the learned counsel for the respondent is based on the old English doctrine of danger. Reliance is placed on a decision of the Bombay High Court in “Madan Lal Sharma v. Smt. Santosh Sharma”, 1980 HLR 441. It was held that the concept of cruelty must involve the same meaning as to is understood under the English law. 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 danger. Reference is also made to “Pushpa Rani v. Krishan Lal”, 1982 HLR 239, where M.L. Jain, J, a learned Judge of this Court quoted with approval the decision of ‘Madan Lal Sharma’ (supra). Reference is also made to some other judgments of the other High Courts to which a reference need not be made. Shri Seth should have brought to my notice that the view taken in Madan Lal Sharmds, Case was over-ruled by a Full Bench of Bombay High Court in “Dr. Keshaorao Krishnaji Londhe v. Mrs. Nisha Londhe”, AIR 1984 Bom. 413, and this was quoted with approval by a Division Bench of this Court in “Smt. Kamini Gupta v. Mukesh Kumar Gupta”, AIR 1985 Del. 221. It was held that the doctrine of danger to life and limb is no longer in the ascendant and mental cruelty is now well recognised as ground for divorce. 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. In all 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 the respondent might have, that the conduct is such that the petitioner ought not to be called upon to endure it. Cruelty contemplates the conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. I have already referred to the complaint dated January 29, 1979, Ext. PW5/1 and its contents. It was followed by reminder dated May 2, 1979, Ext. PW3/1 and letter dated July 20, 1979, Ext. RW2/P2. The reply of the appellant is dated May 8, 1979, Ext. PW2/1.

8. Shri Kanta Parshad, PW2 is an official of the Office of the Commissioner of Scheduled Castes and Scheduled Tribes and he brought the record. He proved the office memorandum issued against the appellant and the reply submitted by him. The investigation was made and it was found that the appellant was not at fault. The finding was given by the Commissioner Shri Sisher Kumar on May 24, 1979. Shri R.D. Aheer, PW4 was working as Assistant Commissioner, Scheduled Castes. He deposed that he dealt with the complaint received from the Home Ministry against the appellant, and called the appellant who submitted his reply, that the reply received from the appellant is Ext. PW4/1 and that after the receipt of the reply from the appellant the matter was discussed with the Commissioner of Scheduled Castes and the reply was sent to the home Ministry, the photostat copy of the said memo dated July 6, 1979 is Ext. PW4/2. PW5, Shri K.K. Bajaj brought the summoned file and produced a copy of the complaint of the respondent sent to the Prime Minister. He deposed that on the basis of the said complaint they wrote to the Commissioner of Scheduled Castes to call for the comments of the petitioner and the copy of the said letter is Ext. PW5/1. The complaint was examined. The allegations that the appellant had demanded dowry were considered under the conduct Rule 13A(ii) which states that “no Government servant shall demand, directly or indirectly, from the parents or guardian of a bride or bridegroom, as the case may be, any dowry”. The person who is guilty of giving or taking or abetting the giving or taking of dowry, or demanding any dowry, directly or indirectly, from the parents or guardian of bride or bridegroom, as the case may be, is liable to the punishments prescribed in Section 3 and 4 of the ‘Dowry Prohibition Act, 1961’. The complaint of the respondent and the comments given by the appellant were examined. It was found that there was no allegation of any dowry having been demanded at the time of the marriage, there could be no question of instituting a case against the appellant either in a court of law or any departmental action. The final reply was sent on January 9, 1980. It was however, observed that during the course of reconciliation between the parties, it was felt that their unfortunate discord is purely a domestic matter and that no misconduct could be attributed to the appellant, but owing to the hardened attitude of both the parties there appeared to be little possibility of a patch up between the two. A finding was however recorded that no misconduct could be attributed to the appellant. The leave applied by the appellant to visit his sister in United Kingdom on tourist visa was subsequently granted. The appellant had applied for leave to go to United kingdom in February 1979, and that was not granted because of the pendency of the complaint made by the respondent.

9. The trial court came to the conclusion that since the appellant was not found guilty in the enquiry, it implies that no danger to life and limb was caused to the respondent and thus there was no cruelty. He also found that the respondent had substantiated most of the allegations made by her in the representation Ext. PW5/1 by leading cogent and reliable evidence. The question for consideration is whether the allegations made in the representation were false or baseless or not. The trial court does not discuss that evidence. Shri Seth has, however, invited my attention during the course of hearing.

10. There is absolutely no evidence on the record about the alleged demand of dowry by the appellant. RW 9 Shri K.K. Chopra states that they performed the marriage in accordance with the wishes of the appellant, that he presented the usual dowry and gifts to the respondent at the time of her marriage and that the list of articles given at the time of marriage is detailed in Annexure ‘A’. He does not say that the appellant was a dowry seeker. In fact he admits that the marriage ceremony had taken place in the morning and was a simple ceremony at the request of the appellant as he did not want the family of the respondent to spend huge amount on the marriage. The only statement made by the respondent’s father is that he had arranged for a sofa set and sent the same to the house of the appellant. RW 9 was then cross-examined at length about the expenses incurred by him in the marriage of the respondent as also the cost of the usual dowry and gifts given to the respondent at the time of her marriage. He could not produce any evidence for the assessment of the cost of those gifts. As regards the sofa set he states that he purchased the sofa set for a sum of Rs. 500/- from shop No. 95, Panchkuian Road, but he had not obtained any receipt and that he had not entered this expenditure in Ext. RW9/1. The proceedings of the enquiry against the appellant on the complaint of the respondent were proved by various official witnesses who appeared in the witness box and the result of investigation is that the respondent failed to prove her allegations of demand of dowry even in the informal preliminary enquiry against the appellant. This allegation of the demand of dowry by the appellant is clearly baseless.

11. That takes me to the consideration of the allegation of a demand on the respondent to bring Rs. 50000/-. In her examination-in-chief the respondent states that the appellant used to ask her to bring amount of salary received by her prior to her marriage and when she informed him that the same had been spent on her marriage, the appellant used to abuse and mal-treat her. She does not give the figure of Rs. 5000/- in her statement. She was questioned in the cross-examination about the maintenance of a bank account prior to her marriage but she could not answer it effectively. The appellant was not cross-examined as to the alleged demand of Rs. 5000/- made by him references is also made to the allegations in the written statement which are alleged as not denied by the appellant in his replication. No specific allegation is made in the written statement to this demand of Rs. 5000/- except making a reference to a copy of the representation made by the respondent to the Prime Minister in paragraph 15. The contents as stated in paragraph 15 are controverted in the replication as not correct and therefore denied. Reference is also invited to the evidence on the record as to the need of the appellant for money to perform his sister’s marriage or his indebtedness. It will be unsafe to draw an inference from the hardship of the appellant that he in fact demanded this amount of Rs. 5000/-.

12. If the respondent was in fact driven out of the house on January 10, 1977, then she would not have joined the appellant on April 27, 1977 soon after the mother of the appellant came back from Katni. Her plea in the written statement is that the appellant and his mother wanted her to go to avoid expenses. It may be that the respondent came to her parental house after 21 days of the birth of the child for convalscence. I have already referred to the evidence on that aspect in the earlier part of the judgment. As the parties cohabited and lived together from April 27, 1977 till December 1977, these allegations should not have been brought out again in the representation to the Prime Minister.

13. It is stated in the written statement that on Sunday the 18th September, 1977 at about 11.30 A.M. in the morning the appellant gave severe beatings to the respondent and pushed her in the stairs, due to which she fell down and sustained injuries on her face and body. This fact is specifically denied in the corresponding paragraph of the replication. This allegation was not made by the respondent in her original written statement and she brought in by way of an amendment in the written statement. The probablity is that was this, with a view to support the allegations made by her in the representation to the Prime Minister. The respondent, her father and RW 6 Shri Jawahar Lal did state about this beating. Cross-examination was directed against RW 6 but this evidence has to be viewed on an afterthought plea.

14. There is absolutely no evidence on the record that the appellant asked the respondent to get a loan of Rs. 5000/- either from Provident Fund account or Co-operative Society for the performance of his sister’s marriage.

15. As regard the threats to take revenge, the only statement made by the respondent is that at the time of turning her out from the house, the appellant had even extended threats that he would get her brother killed and send goondas to her father’s office. She does not support even in her examination-in-chief of any threat of disfiguring her permanently or getting both her father and brother killed in a hit and run road accident.

16. There may be some truth in the allegations but they are so grossly exaggerated and intermixed with falsity that it looses all significance. By and large they are not true but false. I am unable to persuade myself that the intention of the respondent was only to seek redressal of the grievances and not to cause any harm to the appellant made. The appellant the complaint to the Prime Minister on Jaunary 29, 1979 and followed it by a reminder on July 20, 1979 before which time the explanation of the appellant was called. The allegations were not found to be substantiated during the departmental enquiry against the appellant. They have not been substantiated even in the proceedings in the trial court as discussed above. The respondent herself was in Government service and the knew or ought to have known of the implications and consequences of the complaint and deliberately took the step. This act on her part establishes cruelty on the part of the respondent towards the appellant. In “Kiran Kapoor v. Surender Kumar Kapoor”, II (1982) DMC 100, it was held that all scandalous allegations made in the complaint amount to mental cruelty. Similar is the view taken in “Usha Gupta v. Ram Kumar Gupta”, II (1984) DMC (SN) 288.”

17. Apart from it the cross-examination was directed to serious moral lapses of the appellant. A document Ext. R 3 was produced during the course of cross-examination alleging that the appellant had relation with girls. Ext. R 3 was persued before answering the question that he had illicit relations with another woman before his marriage with the respondent. The appellant answered that it is wrong to suggest that he had illicit relations with another woman before his marriage. The cross examination persisted that the appellant had illicit relations from 1965 to 1975 with several women and that this fact has been written in R 3 which was written by him on one day i.e., July 24, 1975. Having regard to the whole of the conduct of the parties, the allegations made by one against the other, leaves a distinct impression on my mind that the maintenance of matrimonial relations is no longer possible. The appellant suffered mental cruelty during the period the complaint of the respondent against the appellant was being investigated and enquired into by the Government. The respondent made accusation and imputation during the trial against the appellant and this caused more pain and misery than the physical beating. It appears to me that the appellant cannot be reasonably expected to live with the respondent and cohabitation between them is virtually impossible.

18. I, therefore accept this appeal and set aside the judgment and decree of the trial court. I hereby dissolve the marriage of the parties by a decree of divorce on the ground that the respondent has, after the solemanization of the marriage, treated the appellant with cruelty. On the facts and circumstances of the case the parties are left to bear their own costs throughout.

Appeal allowed.

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