Court:MADHYA PRADESH HIGH COURT
Bench: JUSTICE R.K. Verma
RAJNI Vs. SHANTILAL On 28 October 1991
Section 13 — Cruelty — Husbands petition for divorce — Ground — Cruelty — Marriage took place in 1976 — Wife living with the husband only two or three times — Tried to commit suicide — Wife denying the allegations — But did not examine herself or any witness — Wife, alleged that husband married for second time — Implying that husband living adultery — Whether inference can be drawn against her ? (Yes).
This in an appeal by the wife against the judgment dated 22.11.1988 passed by the Vth Additional Judge to the Court of District Judge, Indore in Hindu Marriage Act Case No. 51/82 whereby the respondent husband’s application for divorce under Section 13 of the Marriage Act has been allowed.
2. The facts giving rise to this appeal briefly stated, are as follows : —
“This admitted facts are that the parties were married at Jaipur on 3.3.1976 about five years before the filing of the application for divorce, but they are living separately since July, 1980. The husband respondent filed the divorce petition on 15.6. 1981.”
3. The case of the applicant husband is that after the marriage of the non-applicant wife came to the house of the applicant only two or three times and that she was not doing any house-hold work and was always saying that she was sick and that she used to go to her father’s place at Jaipur after one or two months from the house of the applicant. The applicant also alleged that the non-applicant wife used to give threats that she would commit suicide and at one time she took some poisonous substance and tried to commit suicide and she always refused cohabitation. It is alleged by the applicant that the non-applicant went to her father’s place in July, 1980 and did not return since then as she did not want to live with him. The applicant alleged that ornaments to the tune of 20 Tolas of gold which were presented to the non-applicant wife from the side of the applicant husband were also take away by her to her father’s place. The applicant further alleged that the mental condition of the applicant was not good and she was admitted in Jaipur Hospital for her treatment by her father and so it was not possible for the applicant to live with the non-applicant. The applicant husband also alleged that so much mental tension had been created by the non-applicant to the applicant that it had not been possible for him to live with the non-applicant.
4. The non-applicant wife denied all the allegations contained in the application for divorce and she contended that she was badly treated in the house of the applicant by the cousin sisters of the applicant and that she was doing all the house-hold work and so she became sick. It was alleged that the applicant himself had left the non-applicant at Jaipur in July, 1980.
5. On the basis of the pleadings of the parties, the issues were framed and after trial, the learned lower Court recorded the findings on these issues as under : —
Did the non-applicant treat the applicant with cruelty ?
Did the non-applicant desert the applicant without any reasonable excuse continuously for a period of two years preceding the application ?
Whether the non-applicant was and is even now suffering from mental disorder ?
Relief and costs.
Whether the parties entered into a compromise in Jaipur to settle the case ?
Whether the applicant has entered into another marriage ?
6. In this case, the non-applicant-wife filed the written-statement in answer to the husband’s application for divorce disputing and denying the allegations made in the application and also alleging that the unhappy situation was brought about by the applicant ill-treating the non-applicant whose mental condition was adversely affected by such ill-treatment. The non-applicant also alleged that the applicant had taken another wife who had given birth to a female child.
7. But the non-applicant did not examine herself or any witness in support of her defence and as such, the allegations in her written-statement remained unproved.
8. In this appeal by the non-applicant-wife, it has been urged by the learned Counsel for the appellant that the learned lower Court ought not to have granted the decree for divorce on the ground of cruelty since the quarrels between the members of the family are not sufficient to justify grant of divorce. It has also been urged that the non-applicant wife was always ready to join the company of the husband, but she was forced to go away and never called back by the husband. A decision of this Court in Anusuyabai v. Kailashchandra, 1981 (2) MPWN 183, has been cited in support of the aforesaid submission. But in my opinion; this case would not be applicable to the facts of this case for the simple reason that in the instant case the non-applicant did not adduce any evidence to prove the circumstances alleged by her as to why she had to stay with her father away from the husband. Also no evidence of quarrels between the non-applicant and her in-laws has been adduced by the non-applicant.
9. The learned Counsel for the respondent-husband has placed reliance on three decisions to support the impugned judgment and decree, granting divorce. The first one is a decision of this Court in Subhash v. Laxmibai, reported in II (1985) DMC 132, which lays down that cruelty as a ground for divoce under Section 13 (1) (ia) need not be physical but it can be mental cruelty as well which can give rise to a decree for divorce on the ground of cruelty. In the said case the act of the wife not admitting access to her husband and denying him the opportunity of cohabitation coupled with an act of pouring kerosene oil on her body as a measure of threat to kill herself in order to implicate her husband, was held to be a case of mental cruelty to the husband justifying a decree of divorce on the ground of cruelty. In the instant case also, there is unrebutted evidence of the respondent husband to the effect that the wife did not discharge her conjugal obligation and used to deny him the opportunity of cohabitation and that she used to threaten to commit suicide if not allowed to go to her parents.
10. The second case cited is, II (1985) DMC 257, which is a decision of Delhi High Court in Shardha Nand Sharma v. Kiran Sharma wherein it has been held that it is judicially well recognised that making false and reckless allegations on the character of the spouse so as to injure his/her reputation amounts to cruelty as envisaged in Section 13 of the Hindu Marriage Act and that if it can be shown that the spouse reasonably believes that the other spouse is committing adultery, it may offer him/her a fair and good defence. But the burden of proving that the allegations are bona fide or reasonable will necessarily be on the spouse making such allegations.
11. In the instant case, the non-applicant wife has alleged that the applicant-husband has married for the second time daughter of one Premchand Rao resident of Rangrej Gali, Mhow and that one female child has been born out of that marriage at Dhulia where the applicant’s father carries on business. This averment implies that the applicant-husband is living in adultery during the subsistence of the marriage between the applicant and the non-applicant but the appellant-wife has not entered the witness-box either to establish the truth of the allegations or to establish that he reasonably believed it to be true.
12. The third decision cited by the learned Counsel for the respondent is of Bombay High Court in Jaishree Mohan Otavnekar v. Mohan Govind Otavnekar, II (1987) DMC 277=AIR 1987 Bom. 220, wherein the husband made unfounded allegation of adultery against the wife in his written statement in answer to the wife’s petition seeking divorce on the ground of crultey. It has been held in that case that the mental cruelty resulting from the unauthorised and unfounded allegations of adultery In written-statement by the husband in a petition seeking divorce on ground of cruelty is a matter of judicial inference and forms the basis for a decree for divorce.’ However the said case makes a distinction between the position of a Hindu husband and a Hindu wife for the purposes of inference of mental cruelty from the allegation of adultery. The relevant observation in this connection is worthy of note and proceeds as under : —
“It must be borne in mind that the reaction of the women-folk to such allegaticns is not the same as that of the men. Till of late the Hindus were allowed to marry as many wives as they chose and that was considered to be quite an unexceptionable thing. That was not the position so far as the wives were concerned. The husband having a mistress is considered in some quarters to be the sign of his virility and capability. The wife having extra conjugal relation is condemned by the Society as a wanton thing. In case of the husband, the Society looks upon them permissibly whereas in the case of the wife, it is looked upon with askance. The result is that these allegations give rise to agonies in the mind of women folk in general exceptions apart”, whereas in the case of the husband this need not necessarily be so, the Courts, have got to be alive to these facts of life.”
13. The case of Jaishree (supra) is not much favourable to the husband-respondent.
14. Having heard learned Counsel and having considered the unrebutted evidence of the applicant on record and the impugned judgment, I think that the inference of cruelty from the wife’s behaviour alleged in the application for divorce supported by the unrebutted evidence on record as drawn by the learned Lower Court is not unjustified so as to call for interference by this Court.
15. In the result, this appeal fails and is hereby dismissed with no orders as to costs.