making false complaints against spouse and levelling wild allegations against in-laws amounts to mental cruelty-divorce granted.

The Allahabad High Court has ruled that making false complaints against spouse and levelling wild allegations against in-laws amounts to mental cruelty while dismissing a petition.

The Division Bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV passed this order while hearing an appeal filed by Gayatri Mohapatra.

The facts of the case are that the defendant–appellant/wife married with the plaintiff–respondent/husband on 10.06.1990 as per Hindu rites and rituals.

The plaintiff–respondent is an IPS officer while the defendant–appellant holds an MBBS degree. The father of the plaintiff–respondent was in service of the Steel Authority of India, Raurkela while father of the defendant–appellant was Additional Director General of Police, Orissa and her mother has promoted a company known as JBS Capacitors Pvt Ltd, Bhubaneshwar.

The plaintiff–respondent also filed an additional affidavit in evidence in which he further narrated certain facts to support mental cruelty by the defendant–appellant.

In evidence, copies of First Information Report dated 27.03.2005 lodged by the defendant–appellant and various other evidence were also filed by the plaintiff – respondent. However, despite specific allegations of mental cruelty on various grounds including lodging of the false First Information Report against the plaintiff–respondent and his family members, the evidence led in this regard by him could not be disproved by the defendant–appellant. Despite specific allegations of lodging false FIRS, the defendant–appellant/wife has chosen not to lead even her oral evidence.

Considering the facts and evidence on record, the Principal Judge Family Court, Meerut decreed the suit by judgement dated 16.12.2006 dissolving the marriage.

Aggrieved with the aforesaid judgement and decree, the defendant–appellant has filed the appeal.

Submissions of the counsel for the defendant-appellant:-

(i) The plaintiff-respondent has not taken any ground of cruelty in the plaintiff. Therefore, the impugned judgment and decree granted by the Court below on the ground of cruelty and dissolving the marriage, is illegal.

(ii) The averments made in para no 15 of the plaint does not amount to cruelty.

(iii) The impugned order for dissolving the marriage under Section 13 of the Hindu Marriage Act, 1955 has been passed without affording opportunity of hearing to the defendant-appellant.

(iv) The application 20-Ga for summoning several police officers and staff in evidence was illegally rejected by the Court by order dated 21.11.2006.

(v) Not adding the sur-name “Panda” by the defendant-appellant, with her name or with the name of her son, does not amount to cruelty.

Submissions of the counsel for the plaintiff-respondent:-

(i) The cruelty has been well proved by the plaintiff-respondent and findings recorded in this regard in the impugned judgement are based on consideration of relevant evidence on record.

(ii) The plaintiff-respondent and the defendant-appellant are undisputedly living separately since 1999 and thus, more than 23 years have passed and they are not ready to live together. Therefore, in any view of the matter, the parties cannot be directed to live together. There is irretrievable breakdown and the tie of marriage cannot be restored. The decree of divorce itself was passed on 16.12.2006 and thus, about 16 years have already passed from the date of decree of divorce.

The Court noted that,

The facts of the case and the submissions of the counsels for the parties as noted above clearly shows that the grounds for divorce taken by the plaintiff–respondent was mainly “mental cruelty”. The parties have also led their evidence in this regard. It has been admitted by the counsel for the defendant–appellant that the plaintiff–respondents led the oral evidence of witnesses and were cross examined at length by the defendant–appellant but the defendant–appellant has not led any oral evidence. She has also not even filed copies of the order/judgments of the trial court in criminal cases lodged by her against the plaintiff–respondent and his family members. The plaintiff–respondent has led evidence to prove that the FIR lodged by the defendant–appellant were based on false allegations. The defendant–appellant has not led any evidence to disprove it or to prove that the FIR lodged by her was not based on false allegation. She has not even led her oral evidence.

The Court found that the plaintiff–respondent has proved mental cruelty by the defendant–appellant, before the Court below. Instances of making false complaints by the defendant-appellant against the plaintiff–respondent to higher authorities, making wild allegations against the parents of the plaintiff–respondent, unproved allegation of indulgence of the plaintiff in adultery and damaging their reputation in the society, etc. leaves no manner of doubt that the court below has not committed any illegality in the impugned judgment to hold commission of mental cruelty by the defendant–appellant to the plaintiff–respondent. The impugned judgement of the court below is based on consideration of evidence on record. Thus, the impugned judgement does not suffer from any illegality.

“For all the reasons aforestated, we do not find any merit in this appeal. The impugned judgment of the court below does not suffer from any illegality,” the Court observed while dismissing the appeal.

Divorce on Grounds of Cruelty.

“Divorce.– (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party xxx            xxx       xxx (ia)            has, after the solemnization of the marriage, treated the petitioner with cruelty;”

Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger’ (Russel v. Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II page 87]. The provision in clause (ia) of Section 13(1), which was introduced by the Marriage Laws (Amendment) Act 68 of 1976, simply states that ‘treated the petitioner with cruelty’. The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct and not fail in some circumstances. By the amendment the Legislature must, therefore, be understood to have left to the courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases.          It seems permissible, therefore, to enter a caveat against any judicial attempt in that direction (Mulla Hindu Law, 17th Eidition, Volume II, page 87).

In the case of Dastane vs. Dastane, AIR 1975 SC 1534, examined the matrimonial ground of cruelty as it was stated in the old Section 10(1)(b) and observed that any inquiry covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live with the respondent.         It was further observed that it was not necessary, as under the English law that the 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 a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. In essence what must be taken as fairly settled position is that though the clause does not in terms say so it is abundantly clear that the application of the rule must depend on the circumstances of each case; that ‘cruelty’ contemplated is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The treatment accorded to the petitioner must be such as to cause an apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably be expected to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status environments and social values, as also the customs and traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, this Court construing the question of ‘cruelty’ as a ground of divorce under Section 13(1)(ia) of the Act made the following observations :

“Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act.  Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent.   Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental.    Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.           In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent.

Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.”

This Court, construing the question of mentral cruelty under Section 13(1)(ia) of the Act, in the case of G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296, observed :

“The court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances.            Having regard to the sanctity and importance of marriages in a community life, the court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is cruelty on the part of the counter-

petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.”

Quoting with approval the following passage from the judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337, this Court observed therein:

“Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made”.

Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91).

The foundation of the case of ‘cruelty’ as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated.            When the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations.      She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K.Jain. This Court in the case of Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : “Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment”.

Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn        from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.