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Bench: JUSTICES S.P. Srivastava & R.B. Dixit


Law Point:
Cruelty in the Act not envisaged to acts of physical violence and may extend to behaviour causing pain and injury to mind and to render continuance in matrimonial home an ordeal making it impossible for them to live together without mental agony, torture or distress — Acts and conducts amounting to mental cruelty have some times more devastating effect than acts of physical violence.





This letters patent appeal preferred by the wife is directed against the decree passed by the learned Single Judge, whereunder dismissing her first appeal filed under the provisions of the Hindu Marriage Act, the decree of the Trial Court allowing the counter-claim of the husband/defendant for dissolution of marriage of the appellant and dismissing her suit for judicial separation and for recovery of some of the articles but accepting her claim for the grant of maintenance subject to certain conditions, was upheld.

2. In the present appeal, the appellant has prayed for the allowing of the appeal and setting aside of the decree passed by the learned Single Judge confirming the judgment and decree of the Trial Court and has prayed for a decree for judicial separation.

3. However, during the pendency of the appeal, the appellant filed an application being LA. No. 5858/99 on 26.7.1999, wherein she has prayed that the words “and decree for judicial separation may kindly be passed in favour of the appellant” be deleted. With the deletion of the aforesaid words, the only relief claimed in this appeal will remain for setting aside of the judgment and decree passed by the learned Single Judge confirming the judgment and decree of the Trial Court with costs.

4. This appeal is, therefore, treated to be so confined in its scope.

5. We have heard Mr. Dhartipakad Madanlal Agrawal, the brother of the appellant-wife, in support of this appeal in her presence. She has executed the power of attorney in his favour authorising him to present her case and make the submissions in support of the appeal on her behalf. We have also heard the learned Counsel representing the respondent-husband and have carefully perused the record.

6. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass : The appellant-wife had filed an application under Section 10 of the Hindu Marriage Act on 21.3.1991 registered as the suit giving rise to this appeal praying for a decree of judicial separation and return of the articles detailed in the Schedule-A attached to the application alongwith cash and further praying for a direction requiring the defendant-respondent to pay her an amount of Rs. 1,000/- per month for her maintenance.

7. In the aforesaid application, the appellant had challenged that she had been married with the defendant-husband on 28.4.1986 in accordance with the Hindu religion. She had asserted that her husband, the defendant, and the members of his family continuously harassed her on account of dowry and the husband as well as the members of his family tortured her both physically and mentally. A daughter was born to her out of their wedlock on 28.4.1990 but the husband and his father and mother did not allow the new born baby to sleep with her and the said new born daughter died on 12.12.1990, when she was with the sister-in-law of the defendant. It was claimed that apparently the husband had treated her with mental cruelty. She also alleged that the defendant and his family members did not permit her to use or utilise the goods/articles she had received in dowry. The father of the husband/ defendant used to call her to massage his feet in the night and on her refusal used to torture her in various ways. She further asserted that after the death of her daughter when her brother tried to meet her, he was not permitted. In the end, he moved an application before the Court and initiated judicial proceedings and saved her life. She had prayed for a decree of judicial separation on the allegations that she was being meted out at the instance of the defendant-husband not only with mental but physical cruelty. Apart from the decree of judicial separation, she also claimed a decree for the return of the articles, cash detailed in Schedule-A of the plaint and Rs. 1,000/- towards maintenance.

8. The suit of the plaintiff was contested by the defendant-husband denying her allegations. It was alleged that the assertions made by the plaintiff were totally false, malicious and inelegant. It was further asserted that the plaintiff-wife had come up with false allegations with a mala fide intention. The husband had asserted that the plaintiff had made up her mind for the dissolution of marriage (Vivah Vichchhed) and it was with that object in view, had got the criminal proceedings initiated against him and his family members, although there was neither any reason for the same nor any necessity.

9. The husband further asserted that upto 23.1.1991 he had made every effort to keep the plaintiff with him but all his efforts went in vain on account of her attitude and behaviour. The written statement was filed on 4.11.1992 asserting that now in the changed circumstances, the defendant wanted a decree for dissolution of the marriage.

10. In the written statement, a counter-claim was set up as contemplated under Section 23-A of the Hindu Marriage Act. In the counter-claim, it was asserted that the plaintiff wanted that the defendant-husband should severe and break all his relations with his father and brother and reside separately somewhere else leaving the common residence, which was being used in separate portions. The wife, it was claimed, had throughout been insisting that the husband should severe all his connections with family members and live separately. The husband claimed that the plaintiff always neglected him and acted against his wishes, although he gave top priority to her wishes. In this connection, it was indicated that immediately after his marriage with the plaintiff when the marriage of his sister was performed on 18.6.1986, the plaintiff inspite of persuasion did not attend the said marriage. Similarly, in the year 1986, without any information, the wife had gone to her parents’ house on the occasion of Diwali and came back long after during Holi in the next year. In the meantime, inspite of repeated requests, she did not come to her husband’s house and struck to her obstinacy. Again, in the year 1987 on the festival of Nagpanchmi, she went to her parents’ house and did not turn up for about 1½ years. The husband also asserted that the plaintiff’s brother without any justifiable reason started criminal proceedings against him being Criminal Case No. 35/90 and got a search warrant issued, although there had not been any restraint on the movement of the plaintiff and she always went out of her own Will but she disclosed her mean mindedness by getting initiated criminal proceedings against the husband and his family members. The husband asserted that in fact it was the plaintiff who had been acting with cruelty and had got initiated criminal proceedings against the husband and his family members on false allegations.

11. The defendant in his evidence in support of his claim had filed the certified copy of the statement of the plaintiff filed in the criminal proceedings initiated by Kishan Das, her brother, registered as Criminal Case No. 35/90.

12. The statement of the plaintiff was recorded before the Magistrate on 19.12.1990. In her statement, she had stated that she was being forcibly detained by her in-laws. They did not allow her to meet her brother or any person coming from the house of her parents. She also alleged that her mother-in-law, father-in-law as well as the husband were beating her. This mar-peet was disclosed to be on account of Dahej. She also stated that her Jethani had killed her eight months’ old daughter. This Jethani, it was stated, was always saying that she (Surbhi Agrawal) had eaten away the child. It was also stated that she had not been given any food for five or six days and she was being threatened to be turned out of the house on account of dowry. She further stated that she was not allowed to use the telephone.

13. In the aforesaid proceedings, besides impleading the plaintiff, her husband, his elder brother as well as the father-in-law had been impleaded as opposite parties.

14. The Magistrate believing her statement made on oath before him had come to the conclusion that she was being detained against her wishes and issued the search warrant. The search warrant was executed. She was produced before the Magistrate where she started weeping and stated that she was being beaten by her in-laws and she was not being permitted to meet her Mayka people. She was set at liberty to go to her parents’ house alongwith her brother.

15. In support of her claim, the plaintiff had examined herself as P.W. 1. In her statement, she had deposed that she was being harassed on account of dowry from the first day of her marriage. Her in-laws were hurling abuses on her and did not allow her to go to her parents’ house. Even after the death of her daughter, she was not meted out with good behaviour. She was being beaten and told that why she did not give a birth to son and why the daughter was born. On this account saying so, she was beaten. The daughter was being kept by Rashmi Agrawal, the wife of the brother of the husband. The behaviour of her father-in-law towards her was not good. He used to call her at 12 in the night for massaging his feet and on her refusal she was being treated with cruelty, after the death of her daughter, she could not meet her relations in the Mayka. Her brother was not allowed to meet her. She admitted that she had gone to the A.D.M.’s Court. She had been called at the Police Station, where she had gone with her brother. She also admitted that she had sent a notice to her husband. She stated in categorical terms that the reply of the notice, which had been given to her by her husband, was false. She denied the allegations of the husband in regard to the cruelty, etc.

16. In paragraph 8 of her deposition, she categorically stated that she was not prepared to live in Morar. She however clarified that she had refused to live there as she did not want to live alongwith her mother-in-law, father-in-law, sister-in-law, etc. She however denied that she had asked her husband to leave the house and reside separately. She admitted that she had asked her husband to live separately. She also stated in paragraph 10 of her deposition, that various “lanchhans” were levelled against her and she was not being permitted to use the telephone. She also stated that her brother was given ill-treatment, abuses were hurled on him and was beaten. She admitted that the Station House Officer alongwith several persons had come and got her freed. She admitted that her Jeth had requested her to withdraw the criminal proceedings but she did not agree and refused saying that she will do whatever was proper. She had stated that whenever she complained to her husband, he used to scold her saying that if you have to live here, you have to bear all this. She however admitted that in the house of her in-laws, everybody lived separately. There were separate passages but fooding was common. She admitted that she was never medically examined when she was beaten, as her husband did not take her to the doctor saying that she was playing fraud (Dhong). It was also stated by her that the ornaments received by her were taken by her mother-in-law and sister-in-law.

17. Gopilal was examined as P.W. 2. He also deposed that after her marriage the plaintiff was not being treated fairly and there was always quarrel and marpeet. He admitted that he had never seen any sign of injury on her body. He however admitted that the plaintiff always used to visit her Mayka and Sasural frequently. He had stated about the various articles which had been received in present by the plaintiff.

18. Bal Kishan was examined as P.W. 3. He also stated that the behaviour of the husband of the plaintiff and his family members with her was not good. She was beaten and her father-in-law called her to massage his feet in the night. These people raised demand for dowry, although sufficient dowry had been given by her parents. He however stated that the plaintiff did not go to her Mayka and it was through Court that she had been able to go to her Mayka and thereafter Sanjay, the husband, or his family members never turned up to take her back and had not sent any money towards the maintenance. In paragraph 11 of his deposition, he stated that he had never seen Sanjay and Surbhi together. He also stated that it was true that there was no quarrel between Sanjay and Surbhi nor there was any marpeet and the fact that the father-in-law of the plaintiff called her to massage his feet was told by the plaintiff herself. He further stated that he had never met the plaintiff alongwith her daughter and had never visited her house during the period 1986 to 1992. From the perusal of paragraph 15 of his deposition, it appears that what he had stated was only hearsay.

19. Kishan Das, the brother of the plaintiff, was examined as P.W. 4. He also asserted that the behaviour of Sanjay and his family members was not good towards Surbhi. They indulged in hurling abuses on her and she was subjected to marpeet. They raised demands for dowry. He was not allowed to meet his sister, He proved the police report and the execution of the search warrant. He also proved the statement of her sister, to which a reference has already been made hereinabove. It was also stated that since her being set free in the criminal proceedings, she had never gone back to her husband’s house and was residing alongwith her parents. Sanjay or his family members did not turn up to take her back. In paragraph 5 of his deposition, it was stated that Surbhi had told her that her father-in-law and mother-in-law used to beat her husband also but he had not seen her sister being beaten. It was however stated that when he had brought her to the Police Station, there were marks of marpeet on her body but medical examination was not got done. He however did not remember where were those marks.

20. The defendant examined himself as D.W. 1. In his deposition, he had stated that the plaintiff/wife had been going to her Mayka and coming back without restraint. He had also stated that his marriage was solemnised with the plaintiff on 28.4.1986 and on 1.5.1986 the plaintiff had gone to her parents’ house alongwith her brother. Thereafter, she had come in the month of September, 1986 and again on the day of Diwali without any information she had gone back to her parents’ house and came back only on the day of Holi in the year 1987. In 1987 again, she had gone back to her parents’ house on Nagpanchmi day and remained there in the year 1988 and came back only in the year 1989. She had refused to attend the marriage of his elder sister. The defendant proved the assertions of fact made in his written statement. He had stated that his father had never any talk with his wife and never called her to massage his feet in the night as stated by her and no such complaint was ever made by her wife to him. In paragraph 16 of his deposition, the defendant had stated that he alongwith his family members got insulted when without their consent, only just after one day of the marriage, the wife had left his matrimonial house and went to her parents’ house. It was also stated that on account of the wife’s obstinate attitude the whole atmosphere was changed. The prestige of the husband as well as his family members got lowered down in the society. They had been insulted. His mother had died. In such circumstances, the situation which had developed on account of the misbehaviour of the plaintiff and her attitude, it was not possible to keep her and continue the marriage relationship. In this connection, it was also pointed out that the whole incident about the issue of search warrant, etc. had been published in the newspapers.

21. Laxman Das Agrawal and Shyam Pandey were examined as D.W. 2 and D.W. 3. They also supported the claim of the defendant-husband.

22. All the efforts made by the Trial Court regarding reconciliation failed.

23. After considering the documentary as well as the oral evidence brought on record, the Trial Court came to the conclusion that the evidence en the record conclusively established that the plaintiff and the defendant could not respect the sentiments of each other and could not maintain the balance in spite of the fact that they were respectable and educated persons. It also came to the conclusion that the treatment of both of the spouses and their behavior fell within the ambit of cruelty. The Trial Court also came to the conclusion that there was absolutely no possibility of their living together. The Trial Court was of the view that the wife had leveled the charge of murdering her daughter. In the Criminal Case No. 35/90, the husband and his family members had to move an application seeking anticipatory bail. In the circumstances, the Trial Court came to the conclusion that sufficient ground had been made out for the dissolution of the marriage, so that the parties may have a fresh start of new life.

24. The Trial Court after taking into consideration the evidence and the materials on the record determined the quantum of maintenance for which the plaintiff was found entitled to at a figure of Rs. 1,000/- per month. The claim of the plaintiff in regard to the articles and cash, etc. was rejected, except for the items mentioned at Serial Nos. 13 to 18 and 20 and 21 in the Schedule. The claim in respect of the remaining items was not accepted.

25. In view of the aforesaid findings, while dismissing the plaintiff’s suit for a decree of judicial separation, the counter-claim of the defendant was allowed and the marriage was dissolved. The decree for maintenance at the rate of Rs. 1,000/- per month was also granted and the suit was also decreed for the recovery of the articles at item Nos. 13 to 18 and 20 and 21 of the Schedule or their value.

26. Feeling aggrieved by that part of the decree passed by the Trial Court, which was against the plaintiff-wife, she challenged the same by filing First Appeal No. 21 of 1996. The defendant also filed an appeal against that part of the decree which had gone against him, which appeal was registered as First Appeal No. 15/ 96.

27. Both the appeals were heard together by the learned Single Judge and disposed of vide the judgment and order dated 19.12.1996.

28. The learned Single Judge in the aforesaid judgment and order had clearly mentioned that the efforts of reconciliation were made before this Court but the parties could not reconcile their attitude. Neither the wife nor the husband was prepared to live together and it had appeared to the learned Single Judge that their living together was not possible.

29. Coming to the conclusion that practically the marriage had broken and taking into consideration the allegations and counter-allegations made by the parties against each other, the learned Single Judge found it just and fair that the marriage should have been dissolved and affirmed the decree passed by the Trial Court for dissolution of marriage drawing support from the observations made by the Apex Court in its decision in the case of Romesh Chander v. Smt. Savitri, reported in I (1995) DMC 231 (SC)=(1995) 2 SCC 7.

30. The appeal of the husband was also dismissed by the learned Single Judge upholding the grant of maintenance at the rate of Rs. 1,000/- per month to the plaintiff till she remarried. The learned Single Judge also affirmed the decree for the return of the articles or their price. Both the appeals were, therefore, dismissed holding them to be without any merit.

31. Feeling aggrieved, both the wife as well as the husband have challenged the decree passed by the learned Single Judge in Letters Patent Appeals. The L.P.A. No. 51/97 has been filed by the husband praying for the reduction of the amount of maintenance fixed by the Trial Court to be Rs. 500/- per month only or fix the gross sum to be paid in lieu of monthly maintenance. It has further been prayed that the amount of prize of Rs. 5,500/- be paid only. The other appeal being L.P.A. No. 50/97 has been filed by the wife with the relief sought for, to which a reference has already been made hereinabove.

32. Although the grounds of divorce have been liberalised with the enforcement of the Marriage Laws (Amendment) Act, 1976, they nevertheless continue to form an exception to the general principle favouring the continuation of the marital tie. Further, while exercising the matrimonial jurisdiction, the Court is not merely concerned with the rights of the private parties but it has to keep in view the matters of the public policy as well. In spite of the fact that divorces have now been made by the Legislature much less stringent, it is always in public interest that marriage contemplated under the Act as an institution of matrimony which under the Hindu Law is a sacrament and not a mere socio legal contract and is not performed for mere emotional gratification and not a mere betrothal but its contents are religious, should not be annulled on lighter grounds.

33. It may be hazardous and on facts of a case even unjustified to lay down as a general principle of law the necessity or otherwise of the element of intention as a requirement sine qua non for establishing or rejecting a case for judicial separation or divorce on the basis of cruelty. Each case depends on its own facts and must be judged on their basis. The concept of cruelty has varied from time-to-time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the spouses regard being had to their culture, temperaments, status in life and state of health of the parties, interaction between them in their daily life and numerous other factors which cannot be brought in and confined to an exclusive or inclusive definition.

34. It must not however be lost sight of that the existence of cruelty depends not on the magnitude but rather on the consequences of matrimonial offence of cruelty actual or apprehended. Personalities of the parties is an important element for the decision as to whether the status between the two spouses had been cruel. Cruelty as envisaged under the Act is not restricted to acts of physical violence and may extend to behaviour which may cause pain and injury to the mind as well so as to render the continuance in matrimonial home an ordeal where it becomes impossible for them to live together without mental agony, torture or distress. The expression “cruelty” as envisaged under Section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Cruelty may result where the complaining spouse establishes his being treated with cruelty whether physical, mental, social or otherwise but the acts complained of must be more serious than the ordinary wear and tear of marriage falling in the category of conscious acts cruel in nature as that is the underlying requirement of the provision.

35. During the pendency of this letters patent appeal on 4.4.1997, the learned Counsel for the wife-appellant had sought for an adjournment contending that there were chances of compromise in the matter. Again the same request was repeated on 25.4.1997. The order dated 8.8.1997 in this appeal indicates that efforts made for reconciliation between the parties had failed.

36. In the present case, on the evidence brought on record, it is apparent that the wife-appellant had left her matrimonial home just one day after the marriage on 1.5.1986 and did not return in spite of the requests upto the month of September, 1986. She came only on Diwali day and left for her parents’ house without an information and came back only in the year 1987 during the Holi. She again went back in the year 1987 and came back to her matrimonial home after great persuasion. She had made false allegations against her father-in-law as well as husband and his relations. She was instrumental in getting criminal proceedings initiated against her father-in-law, her husband and husband’s elder brother. Even in those proceedings, in her statement on oath, she made the false allegations about her being beaten by father-in-law, mother-in-law as well as the husband. She claimed to have been detained in her matrimonial home against her wishes. The matter in regard to the search warrant and her being mal-treated in her matrimonial home was given wide publicity in the media.

37. It is not disputed that subsequent to the issue of the search warrant and her having been set free from the alleged unauthorised detention in her matrimonial home, she had never shown any inclination to restore the matrimonial relations, as in her deposition before the Trial Court she had insisted that she was not willing to live in Morar i.e. her matrimonial home alongwith her father-in-law, mother-in-law and sister-in-law. Such an attitude is clear from a perusal of the paragraph 8 of her deposition. She also admitted that in spite of receiving the letter from her husband dated 23.1.1991, she did not return back to reside alongwith her husband. Even her brother who had been examined by her as P.W. 4, in his deposition recorded on 30.1.1995, had stated that in case the defendant-husband was prepared to keep her sister properly in a separate house, in that event she may be sent to live with him.

38. It may be noticed that in the letter dated 23.1.1991, it had been clearly indicated by the husband that although he had no intention to live separately and the circumstances also did not permit him to live separately, yet he was prepared to reside with her separately, but m spite of this the wife-appellant had not cared to return to her matrimonial home. She had been produced before the Magistrate on 19.12.1990 after execution of the search warrant by the police and was released the same day to go alongwith her brother. The defendant had asserted that after her release the wife-appellant had never turned up to her matrimonial home to live with him and the criminal proceedings had resulted in the lowering down of the prestige of the family in the society. His mother had died.

39. The question which arises for consideration is as to whether in the aforesaid circumstances, sufficient ground contemplated under Section 13(1)(a) of the Hindu Marriage Act had been made out for the grant of the decree for dissolution of marriage ?

40. There is a long line of decisions holding that false, scandalous, malicious, baseless and unproved allegations made by one spouse whether in letters or other writings, or plaint or a written statement or even in appeal or by any other mode amounts to cruelty. Such allegations may result in maligning either of the spouse or his/her near relations. Such allegations do cause great mental agony either to the husband or the wife as the case may be. False complaint to police or other authorities have also the same result. The Court has ample jurisdiction to take intc consideration even the subsequent events. Such scandalous and false matters, even if, it is brought on record subsequent to the filing of the petition or written statement can be taken into consideration. It is the cumulative effect of all the acts and conduct which has to be taken into consideration for finding out whether the behaviour of the erring spouse falls within the ambit of cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act. What may amount to cruelty in one case may not amount to cruelty in another case. The Court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and the manners of the parties. Cruelty may consist of a single act or conduct of the respondent or it may consist of a series of acts, none of which by itself can be said to constitute cruelty but in their totality they may amount to cruelty :

41. Even though a very wide meaning has been given to cruelty, yet every act or conduct of one party which makes the other unhappy or miserable cannot amount to cruelty. This could not have been the legislative intent is obvious from the fact that the Hindu Marriage Act recognises the institution of marriage as known and understood under the Hindu Law. This is clear from Section 4 of the Act which stipulates that save as otherwise expressly provided in the Act, — any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act and further, that any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is consistent with any of the provisions contained in this Act.

42. The overriding effect of the Act does not militate against the concept of the Hindu marriage being a sacrament. The mere fact, therefore, that the erring spouse is moody, whimsical, mean, stingy, selfish, boorish, irritable, inconsiderate, etc., will not be sufficient to amount to cruelty. Similarly, merely neglect or want of affection, expression of hatred will not be a conduct constituting cruelty. The idiosyncracies of the wife some time may not amount to cruelty, even though they make the husband unhappy. There maybe occasions where the conduct of wife may lead to unpleasantness but such unpleasantness alone will not amount to cruelty and this may reasonably fall within the ambit of ordinary wear and tear of matrimonial life which is not sufficient for establishing cruelty as envisaged under the Act. However, in matrimonial life, acts and conducts amounting to mental cruelty abound and have some times more devastating effect than the acts of physical violence.

43. The allegations made in the plaint by the wife-appellant have already been referred to hereinabove. In her deposition on oath, she has clearly asserted that she was being beaten by her husband, father-in-law, mother-in-law on the matter relating to dowry. She had also asserted that her sister-in-law (Jethani) had murdered her daughter. She was not being given food for 5 or 6 days. In its decision in the case of Shobha Rani v. Madhukar Reddi, reported in I (1988) DMC 12 (SC)=AIR 1988 SC 121, the Apex Court had indicated that demand of dowry amounted to cruelty entitling the wife to get a decree of dissolution of marriage. In such a circumstance, the allegation on the part of the wife that the husband and her relations were raising demands of dowry and torturing her which allegations are found to be false have to be taken to make out a case of cruelty entitling the husband to get a decree of dissolution of marriage and such wholly baseless allegations tantamount to cruelty.

44. In the present case, we further find that the wife-appellant had been pressurising the husband to live separately from the joint family, levelling several false allegations against her father-in-law, mother-in-law as well as sister-in-law. She was instrumental in the initiation of the criminal proceedings involving her father-in-law and husband and his elder brother levelling allegations against them in regard to her being detained in the matrimonial house against her wishes and refused to withdraw the proceedings in spite of request. This matter was given wide publicity. No effort was made on her part to get any contradiction published in the Newspapers. She got her matrimonial house searched for her procurement and production before the Magistrate for being released to go wherever she liked even though there was no restraint on her. In this case, the husband or his elder brother or father-in-law did not put in any contest in those proceedings as they had never restrained her and she was permitted to go whenever she wished to go. She allowed herself to be produced before the Magistrate in police custody. She never turned up in her matrimonial home after her being set at liberty by a Court in the proceedings which had been engineered by her. In fact, in her application, LA. No. 5854/99, in paragraph 2, what has been indicated by her is that her effort was to get maintenance with the intention that this payment will remove from the mind of her husband the habit of torturing her and he will ask his family members not to pester her. Although, in paragraph 8 of the said application, she had indicated that she was prepared to condone the acts of her husband and live with him, the efforts made by the learned Single Judge as well as in the present proceedings for reconciliation did not bear fruit.

45. Taking into consideration the conduct and behaviour of the wife-appellant and her attitude, it is apparent that there has been no such future assurance on her part showing conjugal kindness on her return to the matrimonial home.

46. We may notice at this stage that intention to be cruel is not an essential element of cruelty as envisaged under Section 13(1-A) of the Hindu Marriage Act. If bitter waters are flowing it is not necessary to enquire from which source they spring. The intention or motive behind the cruelty has lost significance in the changed society and the social atmosphere of the present day. It is sufficient that if the cruelty is of the type which indicates that the relations between the spouses had deteriorated to such an extent due to the conduct of one or the other that it has become impossible for them to live together without mental agony. In marital matters, the feelings and attitudes of minds are material.

47. In the present case, the wife was conscious throughout about her actions and conduct. She was also conscious about her involvement in the criminal proceedings to which her husband, his elder brother and her father-in-law were subjected to. She had made allegations about her being beaten and demands being raised in connection with dowry which allegations were false to her knowledge. Her conduct and behaviour was sufficient to create mental agony and a sense of uncalled for guilt in the minds of her husband and his relations who felt insulted and there was lowering down of their prestige with publication in the media, to which a reference has already been made hereinabove, especially when she had never been mal-treated as claimed.

48. Further, the wife-appellant had come up with specific case that she was suffering mental cruelty at the hands of her husband and relatives. The husband, on the other hand, had come out with specific case that he was being meted out by his wife with cruelty. At the different levels, right from the Trial Court, the first Appellate Court and at the stage of this appeal, every effort to bring about a reconciliation had failed. The acts, conduct and behaviour of the plaintiff-wife, in our opinion, in the facts and circumstances of the present ease, clearly amounted to cruelty as contemplated under the Hindu Marriage Act.

49. We are further of the opinion that if any of the parties succeeds in showing that the other had completely proved the case that the parties cannot live together, such a spouse is entitled to a decree of divorce as it is of no use to keep them together when it is established that the parties cannot live together any more. An order of judicial separation affords an opportunity to parties to reconcile their differences and come together. If, however, there is no reconciliation, the parties are entitled under Section 13(1-A) of the Act to get an order of dissolution of the marriage. In the present case, the wife-appellant is living separately right from the day she was released by the Court of Magistrate on 19.12.1990. She had never turned up to her matrimonial home in spite of sufficient time having gone by and in spite of repeated efforts having been made no reconciliation has been possible. This is an additional ground for declining to interfere in the decree passed by the Trial Court which stands affirmed under the order passed by the learned Single Judge dismissing the appeal.

50. It has been strenuously urged that in the facts and circumstances of the present case, the misconduct, if any, on the part of the wife stood condoned and ought not be taken into consideration for upholding the decree of dissolution of marriage and this aspect has not been considered by the Courts below.

51. We have given our anxious consideration to this submission.

51A. Even though condonation is not pleaded as a defence after the filing of the written statement wherein a counter-claim for a decree of dissolution of the marriage was set up, there could be no manner of doubt that in view of the provisions of Section 23(1)(b) of the Hindu Marriage Act, a duty stood cast upon the Court to find out on preponderance of probabilities whether cruelty was condoned by the aggrieved spouse. The provisions contained in that section cast an obligation on the Court to consider the question of condonation which obligation has to be discharged even in undefended cases as the relief prayed for can be decreed only if the Court is satisfied but not otherwise. It is of course necessary that there should be evidence on record to demonstrate the preponderance of probabilities pointing out that cruelty had been condoned. This position in law stands amply clarified by the decision of the Apex Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane, reported in I (1981) DMC 293 (SC)=AIR 1975 SC 1534, (At page 1545).

52. Much stress had been laid on the fact that there had been a co-habitation in between the spouses and a daughter had been born on 28.4.1990 who had died on 12.12.1990. This co-habitation, it has been urged, was more than sufficient for the condonation of the past conduct.

53. The search warrant in the criminal case for procuring the plaintiff and producing her before the Magistrate was executed with her production on 19.12.1990 The publication etc. in the newspapers was subsequent to the issuance of search-warrant and the application under Section 10 giving rise to this appeal had been filed on 21.3.1991. In our considered opinion mere co-habitation is not necessarily and always conclusive proof of condonation of matrimonial of fence. Where spouses live in same house separately after the alleged matrimonial offence and then cohabitate, it must be taken to be a very strong piece of evidence of condonation but under the matrimonial law the “condonation” means and refers to only a conditional forgive­ ness. Such condonation implies the condition that no further matrimonial offence shall be committed. Where continuing course of conduct on the part of the spouse which tantamounts to causing mental cruelty is made the basis of relief then no condonation can be pleaded because the subsequent and the latest act of cruelty would wipe out the effect of condonation of earlier act or acts of misconduct. The acts of cruelty even though condoned or deemed to have been condoned may be relied upon for the purpose of showing the persistent conduct of such party considering the subsequent acts of cruelty not followed by any co-habitation or other act of condonation.

54. The cruelty which is contemplated under the Act is not restricted to acts of physical violence and may extend to a behaviour which may cause pain and injury to the mind as well and render the continuance together in the matrimonial home an agonising ordeal. The cruelty may be in the conduct demeanour and treatment of the offending party.

55. Considering the peculiar facts and circumstances brought on record we are not satisfied that the acts complained of amounting to cruelty stood condoned as claimed. The submission in this regard is not at all acceptable;

56. We are conscious that on the one hand there are old traditional ideas of family unity, the bond of kinship demanding total allegiance as envisaged in a Joint Hindu Family as known to Hindu Law and on the other hand there are ideas of freedom, liberty and equality which are seeking in deeper and deeper even in the joint house-holds. Fission and not the union has become the modern trend in the fast deteriorating economic conditions giving an impression that the happy married life is only a mirage. The effect of the social and human tussel apparent in the present day society is that the couples living in the joint family seek freedom from the shackless of kinship bond which are still holding. More often than not, the couple try to shed their kinship bonds but more often than not they do not succeed; the centuries old traditional kinship bonds are hard to shed. This leads to friction. In such a setting the wife for whom there is no kinship bond to hold her to her husband’s family except that she is wedded to a son of a joint family often finds it difficult to adjust herself, and difference arises and get accentuated. Some limes these differences become so acute that either wife leaves the household or is turned out of it. This obviously requires deep understanding capacity to adjust. Both the husband and wife have to make every possible effort in this regard to save the matrimonial tie.

57. In the present case, however, the letter issued by the husband which has been heavily relied upon by the wife-appellant dated 23rd January, 1991 indicates the attitude of the husband. He had requested his wife to live with him proposing that although he had neither any desire to leave his father and mother and brother nor continues permitted his living separately. Still he was prepared to live with her separately. He had requested her for time being to leave her desire of living separately or judicial separation or dissolution of marriage. This request had no effect on the wife. In her deposition before the Trial Court she categorically stated that she was not prepared to live in Morar. She had explained that she does not want to live with her father-in-law, mother-in-law as well as sister-in-law. She admitted that inspite of the receipt of the aforesaid letter she had not returned to the matrimonial home.

58. In such circumstances we are clearly of the opinion that neither the wife-appellant nor the husband can be taken to have condoned the matrimonial offence which had been made the basis of the impugned decree for the dissolution of the marriage.

59. In this case, written statement containing the counter-claim had been filed on 4.11.1992. Thereafter, various dates had been fixed by the Trial Court and ultimately issues were framed on 7.4.1993, on which date 3.5.1993 had been fixed for evidence, which was adjourned to 12.7.1993. Thereafter, after various adjournments, the plaintiff closed her evidence on 30.1.1995.

60. It has been urged on behalf of the appellant that the Trial Court had not given any opportunity to answer the counter-claim in accordance with the provisions contained in Order 8, Rule 6-A of the Civil Procedure Code.

61. The aforesaid provision only provides an opportunity to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

62. It may be noticed that Section 23-A of the Hindu Marriage Act stipulates that in any proceedings for divorce or judicial separation or restitution of conjugal rights, the respondent may not oppose the grounds of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under that Act on that ground, and if the petitioner’s adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under the Act, which he or she would have been entitled if he or she had presented a petition seeking relief on that ground.

63. It may further be noticed that Section 21 of the Hindu Marriage Act provides as follows :

“Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.”

64. In view of the special provision in regard to the counter-claim for any relief under the provisions of the Hindu Marriage Act on the ground of, petitioner’s adultery, cruelty or desertion having been proved, the Matrimonial Court stands vested with the jurisdiction to grant a relief as envisaged under the Act to the respondent on that ground, to which he or she would have been entitled, if he or she had presented a petition seeking such relief on that ground. The aforesaid provision clearly envisages grant of a relief to the defendant on the plaintiff’s proving her case in regard to adultery, cruelty or desertion.

65. In the present case, however, the defendant had set up additional grounds making out a case of cruelty for seeking a decree of dissolution of marriage and had paid separate Court fee and had made a specific prayer for the grant of a decree of dissolution of his marriage with plaintiff.

66. We are of the considered view that the plaintiff had not been prejudiced in any manner and had ample opportunity to contest the claim of the defendant and the contention sought to be urged in this regard is totally misconceived.

67. In LA. No. 882/97, the appellant has also tried to challenge the finding in regard to the dismissal of her suit in regard to some items mentioned in the schedule attached to the plaint.

68. The finding of the Trial Court in this regard was based on an appraisal of the evidence on record. The concurrent findings returned against the appellant do not appear to be vitiated in law.

69. Further, taking into consideration the ratio of the decision of the Division Bench in the case of Dr. Suneer Sharma v. Dr. Madhurlata Sharma, reported in II (1999) DMC 745 (DB)=1999 (2) MPLJ 603, such concurrent findings are not amenable to interference in a letters patent appeal.

70. Taking into consideration the evidence and the materials on record, we are not satisfied that the finding of the Trial Court on the question about the return of articles requires any interference.

71. In LA. No. 5856/99, the appellant has referred to various documents forming part of the record and has prayed for including their copies in the paper-book.

72. Since the entire record of the Trial Court has been examined, the purpose sought to be achieved by this application is served.

73. In view of the facts and circumstances noticed hereinbefore and our conclusions indicated hereinabove, we are not satisfied that any justifiable ground has been made out for any interference.

74. This appeal deserves to be and is hereby dismissed.

75. There shall however be no order as to costs.

Appeal dismissed.

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