Court: HIMACHAL PRADESH HIGH COURT
Bench: JUSTICE Rajesh Sharma
Pushpa Devi vs. Om Parkash
Filing of false complaints and threatening the Husband amount to acts of cruelty. Wife used to leave the matrimonial home at her own will, which amounts to desertion. Decree of divorce granted to Husband.
1. This appeal has been instituted against Judgment dated 31.5.2008 rendered by learned Presiding Officer/Additional District Judge, Fast Track Court, Hamirpur, District Hamirpur, Himachal Pradesh in HMA Petition No. 49/2004/RBT No. 37/2005.
2. “Key facts” necessary for the adjudication of the present appeal are that respondent has instituted a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage between the parties by way of a decree of divorce against appellant. Marriage between the parties was solemnised on 10.2.2000 as per Hindu rites and customs. Appellant started misbehaving with the respondent and her in-laws. She gave beatings to the mother of the respondent. She used abusive language against father of the respondent. Matter was also reported to the Gram Panchayat, Jol Sapar and also police station Nadaun. Father of the respondent also filed a complaint before Superintendent of Police, Hamirpur complaining about the misbehaviour of the appellant towards the respondent. Appellant also filed a complaint under Section 498-A/34 IPC against the respondent and his parents. She deserted him in the month of October, 2001. Petition was contested by the appellant. According to the averments contained in the reply, she has not mal-treated the respondent or members of his family. She was ready and willing to stay with the respondent. Rejoinder was filed by the respondent.
3. Issues were framed by learned Court on 5.1.2005. Petition was allowed on 31.5.2008. Hence, this appeal.
4. Mr. Anand Sharma, Advocate, has vehemently argued that his client has not subjected the respondent to any physical or mental cruelty nor his client has ever deserted the respondent without a reasonable cause.
5. I have heard the learned counsel for the appellant and also gone through the record and judgment carefully.
6. Respondent has appeared as PW-1. According to him, appellant used to quarrel and beat his parents. She used to leave the matrimonial house at her own. Matter was reported to the police. Appellant filed complaint against him and his family members under Section 498-A IPC. He was arrested by the police. In his cross-examination, he admitted that earlier also he had filed a divorce petition. It was withdrawn. However, situation did not improve.
7. PW-2 Ranjit has deposed that the appellant used to quarrel and abuse the respondent and his parents.
8. PW-3 is the father of the respondent and he has also deposed about the misbehaviour of the appellant with the respondent and his family members. Appellant has given beatings to her mother-in-law. Matter was reported to police vide Mark ‘A’ and Mark ‘B’. Complaint was also filed with the police against respondent and his family members under Section 498-A IPC. He has provided separate accommodation to the appellant but she did not stay there.
9. Respondent has appeared as RW-1. According to her, parents of the respondents did not behave properly with her. She was forced to live in a cowshed. She denied about the beatings given by her to her mother-in-law. However, she has admitted that a case under Section 498-A IPC was registered against the respondent and his parents. She has categorically admitted that neither respondent gave beatings to her nor at any time demanded dowry from her parents. She also admitted that respondent filed complaint before Mahila Ayog against her.
10. Biasan Devi RW-2 is the mother of appellant. According to her, appellant came with the respondent to her parents’ house at the time of delivery. She went back to the house of respondent. In her cross-examination, she has admitted that that appellant never complained about respondent or his parents regarding any misbehaviour.
11. What emerges from the material on record is that appellant has filed a complaint against respondent and his family members under Section 498-A IPC. Respondent was arrested. Appellant has also given beatings to the mother of the respondent. Copy of Rapat Rojnamcha is Ext. PA dated 4.8.2002. Respondent was also constrained to approach the Mahila Ayog. Appellant has admitted that neither respondent nor his family members have ever demanded dowry from her parents. She was not given beatings by the respondent. Appellant has rather threatened the respondent to commit suicide by consuming some poisonous substance. Respondent earlier filed a divorce petition. The matter was compromised. However, situation did not improve hence, respondent was constrained to file fresh petition against appellant seeking divorce. Appellant has left the company of the respondent without any reasonable cause. It has come in the statement of respondent as well as father of the respondent that appellant has left the company of the respondent. Complaint has been filed by the appellant against the respondent and his family members under Section 498-A IPC only after the divorce petition was filed by the respondent against her. Facts enumerated herein above have definitely caused mental and physical cruelty to the respondent. Appellant has deserted the respondent as notice herein above, without reasonable cause.
12. Their Lordships of the Hon’ble Supreme Court in Samar Ghosh v. Jaya Ghosh reported in MANU/SC/1386/2007 : (2007) 4 SCC 511, have enumerated some instances of human behaviour, which may be important in dealing with the cases of mental cruelty, 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.
99. 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.
100. 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 strait-jacket 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.
101. 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) 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.
(vii) 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.
(viii) 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.
(ix) 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.
(x) 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.
(xi) If a husband submits himself for an operation of sterilization 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.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) 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.”
13. Their Lordships of the Hon’ble Supreme Court in Manisha Tyagi v. Deepak Kumar reported in MANU/SC/0101/2010 : 2010(1) Divorce & Matrimonial Cases 451, have explained the term ‘cruelty’ as under:
“24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonable be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that would be harmful or injurious to continue the cohabitation with the other spouse. Therefore, to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However, in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce.”
14. Their Lordships of the Hon’ble Supreme Court in Bipinchandra Jaisinghbai Shah versus Prabhavati, MANU/SC/0058/1956 : AIR 1957 SC 176 have held that two essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held that desertion is a matter of interference to be drawn from the facts and circumstances of each case. Their Lordships have held as under:
“What is desertion” “Rayden on Divorce” which is a standard work on the subject at p.128 (6th Edn.) has summarized the case-law on the subject in these terms:–
“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party”.
The legal position has been admirably summarized in paras 453 and 454 at pp. 241. to 243 of Halsbury’s Laws of England (3rd Edn.), Vol. 12, in the following words:–
“In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence”. Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances to each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard CJ. in the case of Lawson v. Lawson, 1955-1 All E R 341 at p. 342(A), may be referred to:–
“These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution……. ”
With these preliminary observations we now proceed to examine the evidence led on behalf of the parties to find out whether desertion has been proved in this case and, if so, whether there was a bona fide offer by the wife to return to her matrimonial home with a view to discharging marital duties and, if so, whether there was an unreasonable refusal on the part of the husband to take her back.”
15. Their Lordships of the Hon’ble Supreme Court in Jagdish Singh v. Madhuri Devi reported in MANU/SC/7530/2008 : (2008)10 SCC 497, have held that before an appellate Court reverses findings of trial Court, it has to look into following instances:
“(i) it applies its mind to reasons given by the trial court;
(ii) it has no advantage of seeing and hearing the witnesses; and
(iii) it records cogent and convincing reasons for disagreeing with the trial court.”
16. Learned Court below has rightly appreciated the oral as well as documentary evidence on record.
17. In view of the discussion and analysis made herein above, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stand disposed of. No costs.
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