CASE NO.:
Appeal (civil) 3930 of 2002
PETITIONER:
PARVEEN MEHTA
Vs.
RESPONDENT:
INDERJIT MEHTA
DATE OF JUDGMENT: 11/07/2002
BENCH:
D.P. MOHAPATRA, BRIJESH KUMAR.
JUDGMENT:
D.P.MOHAPATRA,J.
Leave granted.
What is the meaning and import of the
expression 'cruelty' as a matrimonial offence is the core
question on the determination of which depends the result
and the fate of this case.
The appellant is the wife of the respondent. They
were married according to Hindu rites and customs on 6th
December, 1985. The marriage was preceded by
negotiation between the two families, ring exchange
ceremony, etc. A meeting between the boy and the girl was
also arranged at Yamuna Nagar in the State of Haryana.
After marriage the spouses stayed together at Panipat
where the respondent was posted as a Judicial Officer.
They lived together till 28th April, 1986 when they parted
company never to stay together again. It is the case of the
respondent that right from the first day of the marriage he
sensed something abnormal with his wife; he was unable
to consummate the marriage as there was no cooperation
from the side of the wife for sexual intercourse. Despite
several attempts cohabitation was not possible for lack of
cooperation on the part of the wife. It is the further case of
the respondent that when he first met his wife when some
members of the two families met he had noticed that she
was looking very frail and weak. When he wanted to know
the reason for such state of her health her father and other
relations told him that she had been undergoing a strict
diet control and had been making efforts to reduce her
w.eight
On questioning his wife immediately after the
marriage the respondent could ascertain that she was
suffering from some ailment and she was under the
treatment of Vaid Amar Nath Sastry of Chandigarh. On
10th December, 1985 the respondent took his wife to see
Mr.Sastry at Chandigarh who informed him that father of
the girl was his close friend and he was already seized of
the problems of her health. He gave some medicines to be
taken by her. Thereafter they returned to Yamuna Nagar
where parents of the respondent were living. Subsequently,
the respondent took the appellant to Panipat where he was
posted and they started living there and continued with
the medicines. In February, 1986 the appellant agreed to
be examined by Dr.B.M.Nagpal of Civil Hospital, Panipat.
The doctor advised a thorough check up and diagnosis.
However, this was not possible since the appellant did not
cooperate and ultimately gave out because she was not
interested in taking any medical treatment.
The respondent further alleged that the state of
health of the appellant continued to deteriorate; she
continued to lose weight; she suffered from asthmatic
attacks; on account of her ailment her behavior became
quarrelsome; and on trifle matters she threatened to leave
the matrimonial home. It was further contended that
during her stay at Panipat when Surinder Singh Rao and
Virender Jain, friends of the respondent visited his place,
the appellant refused to prepare tea and started
misbehaving with him in presence of the outsiders thereby
causing embarrassment to him. Ultimately on 28th April,
1986 her brother and brother's wife came to Panipat and
took the appellant with them. It was the further case of
the respondent that when the appellant was with her
parents several attempts were made by him offering to give
her the best possible medical treatment so that the
condition of her health may improve and both of them
could lead a happy married life. All such attempts failed.
The offer of medical treatment was rejected and even
nature of the ailment suffered by her was not disclosed to
the respondent.
On one occasion when Shri S.K. Jain, a senior officer
of the Judicial Service, then the Legal Remembrancer of
Haryana and who later became a Judge of the High Court
was discussing the matter with the parties with a view to
bring about a settlement the appellant caught hold of the
shirt collar of the respondent and created an ugly and
embarrassing situation. Again on 30th July 1986 the
appellant accompanied by a number of persons searched
for the respondent in the Court premises at Kaithal and
not finding him there forcibly entered his house and
threatened him. A report about the incident was sent to
the superior officer of the respondent. Alleging the
aforestated facts and circumstances the respondent filed
the petition in August, 1996 seeking dissolution of the
marriage on the grounds of cruelty and desertion.
The appellant refuted the allegations made in the
petition. She denied that her husband had been misled
regarding the state of her health before their marriage. She
alleged that the marriage was duly consummated and the
phera ceremony was performed; and that her husband had
been expressing full love and affection towards her. She
denied that she suffered from any serious ailment and had
been treated by Vaid Amar Nath Sastri. It was her case
that she had become pregnant from the wedlock but
unfortunately there was miscarriage. It was the further
case of the appellant that the respondent and his parents
wanted to pressurise the appellant and her parents to
agree for a divorce by mutual consent. On 21st June, 1987
when a meeting of relations of both sides took place at the
house of her mother's sister Smt.Parakash Kapur at
Yamuna Nagar the respondent stated that the appellant
was too frail and weak; that she must be suffering from
some disease and therefore, he was not prepared to take
her back. Thereafter several attempts were made by her
parents and other relations to persuade the respondent to
take the appellant to his house but such attempts were of
no avail on account of want of any response from the
respondent and his parents.
On the pleadings of the parties, the Trial Court
framed the following issues :
"1) Whether the respondent-wife has
deserted the petitioner, if so, its
effect? OPP
2) Whether the respondent-wife is
guilty of cruelty, if so, its effect?
OPP
3) Whether this petition is barred by
latches, in accordance with
Section 23(1a) and (d) of the Act?
OPP
4) Relief."
Both the parties led evidence, both oral and
documentary, in support of their cases. The Trial Court on
assessing the evidence on record, dismissed the petition
for divorce filed by the respondent.
The respondent filed an appeal, FAO No.42-M/99
before the High Court assailing the judgment of the Trial
Court. The appeal was allowed by the learned Single
Judge by the judgment rendered on 1st June, 2000. The
learned Single Judge granted the prayer of the respondent
for dissolution of the marriage on the ground of cruelty
and further held that as the marriage took place about 14
years ago and there was no child out of the wedlock it
would be in the interest of justice that the parties should
be separated from each other. The operative portion of the
judgment is quoted hereunder :
"In view of the discussion as such the
only conclusion which can be arrived
at is that despite the fact that the
respondent is a good lady but has
created the aforesaid situation because
of her own act and conduct concerning
the non-disclosure of her state of
health and concealment by her above
acted as a mental and physical cruelty
to the appellant which entitles him to a
decree of divorce. Therefore, the
findings of the learned District Judge
on issue Nos.1 to 3 are reversed.
For the foregoing reasons, the
appeal is allowed, marriage between
the parties stands dissolved and a
decree of divorce on the grounds of
desertion and cruelty is hereby granted
in favour of the appellant (husband)
and against the respondent (wife). In
the circumstances of the case, the
parties are left to bear their own costs.
However, it would be appropriate to
ask the husband not to remarry till
30.9.2000. Hence ordered accordingly."
The wife, who is the appellant herein, filed an appeal
before the Division Bench, Letters Patent Appeal No.1000
of 2000, assailing the judgment of the learned Single
Judge. The Division Bench of the High Court by the
judgment rendered on 8th August, 2000 dismissed the
Letters Patent Appeal in limine. The Division Bench held:
"Even otherwise, in the facts and circumstances of the
case in hand, in our view, it cannot be said that the
husband has tried to take advantage of any wrong on his
part. Rather, he did make the best possible effort to
explore the possibility of detecting the deficiency or
disease, if any, and for treatment of poor health of his wife.
But, all in vain. We find no merit in the Letters Patent
Appeal. It is, therefore, dismissed in limine." The said
judgment is under challenge in this appeal.
Shri Ujjagar Singh, learned senior counsel appearing
for the appellant contended that in the context of facts and
circumstances of the case the High Court has erred in
granting the prayer for divorce by the respondent on the
sole ground of cruelty. He further contended that even
assuming that the spouses did not enjoy normal sexual
relationship with each other on account of frail health of
the appellant and there were heated exchanges between
the parties followed by the appellant catching hold of shirt
collar of the husband, that is not sufficient to establish a
case of cruelty for the purpose of Section 13(1)(ia) of the
Act. Shri Singh also contended that if the ground of
cruelty fails then the further ground stated in favour of the
decree of divorce that the marriage has irretrievably broken
down will be of no avail to the respondent.
Shri Sudhir Chandra, learned senior counsel
appearing for the respondent strenuously contended that
in the facts and circumstances of the case the High Court
rightly recorded the finding of cruelty by the appellant
towards the respondent. Elucidating the point Shri Sudhir
Chandra submitted that the respondent was kept in the
dark about the poor state of health of the appellant at the
time of the marriage negotiations despite the query made
by him about the reason for her frail and weak health.
After marriage when the respondent was prepared to
provide the best possible medical treatment to improve her
health neither the appellant nor her parents extended their
cooperation in the matter. Further, the erratic and
impulsive behavior of the wife caused serious
embarrassment to the respondent before his friends and
colleagues. The cumulative effect of all the aforesaid facts
and circumstances of the case, according to Shri Sudhir
Chandra, give rise to reasonable apprehension in the mind
of the respondent that it is not safe to continue
matrimonial relationship with the appellant. Thus a case of
cruelty for the purpose of Section 13(1)(ia) was made out. It
was the further contention of Shri Sudhir Chandra that
the respondent remarried in December, 2000, two years
after the judgment of the Single Judge and nearly four
months after the judgment of the Division Bench was
rendered. In the facts and circumstances of the case,
urged Shri Sudhir Chandra, this is not a fit case for this
Court to interfere with the judgment and decree passed by
the High Court in exercise of its jurisdiction under Article
136 of the Constitution of India.
As noted earlier, the learned Single Judge granted
the respondent's prayer for dissolution of the marriage on
the ground of 'cruelty'. Therefore, the question arises
whether in the facts and circumstances of the case a case
for divorce under Section 13(1)(ia) of the Hindu Marriage
Act,1955 (for short 'the Act') has been made out. The
answer to this question depends on determination of the
question formulated earlier. In Section 13(1) it is laid
down that :
"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).
This Court 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).
In the case in hand 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.
Judged in the light of the principles discussed above
what we find is that right from the beginning the
matrimonial relationship between the parties was not
normal; the spouses stayed together at the matrimonial
home for a short period of about six months; the
respondent had been trying to persuade the appellant and
her parents to agree to go for proper medical treatment to
improve her health so that the parties may lead a normal
sexual life; all such attempts proved futile. The appellant
even refused to subject herself to medical test as advised
by the doctor. After 21st June, 1987 she stayed away from
the matrimonial home and the respondent was deprived of
her company. In such circumstances, the respondent who
was enjoying normal health was likely to feel a sense of
anguish and frustration in being deprived of normal
cohabitation that every married person expects to enjoy
and also social embarrassment due to the behavior of the
appellant. Further, the conduct of the appellant in
approaching the police complaining against her husband
and his parents and in not accepting the advice of the
superior judicial officer Mr.S.K.Jain and taking a false plea
in the case that she had conceived but unfortunately there
was miscarriage are bound to cause a sense of mental
depression in the respondent. The cumulative effect of all
these on the mind of the respondent, in our considered
view, amounts to mental cruelty caused due to the
stubborn attitude and inexplicably unreasonable conduct
of the appellant.
The learned Single Judge in his judgment has
discussed the evidence in detail and has based his findings
on such discussions. In the Letters Patent Appeal the
Division Bench on consideration of the facts and
circumstances of the case agreed with the findings
recorded by the learned Single Judge. In the context of
the facts and circumstances on record we are of the view
that the learned Single Judge rightly came to the
conclusion that the prayer of the respondent for
dissolution of the marriage on the ground of cruelty under
Section 13(1)(ia) of the Act was acceptable. Therefore, the
Division Bench committed no error in upholding the
judgment of the learned Single Judge.
As noted earlier the parties were married on 6th
December, 1985. They stayed together for a short period
till 28th April 1986 when they parted company. Despite
several attempts by relatives and well-wishers no
conciliation between them was possible. The petition for
the dissolution of the marriage was filed in the year 1996.
In the meantime so many years have elapsed since the
spouses parted company. In these circumstances it can be
reasonably inferred that the marriage between the parties
has broken down irretrievably without any fault on the
part of the respondent. Further the respondent has re-
married in the year 2000. On this ground also the
decision of the High Court in favour of the respondent's
prayer for dissolution of the marriage should not be
disturbed. Accordingly this appeal fails and is dismissed.
There will, however, be no order for costs
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