Delhi High Court: Parents ruining Marriages by constat interference. 18.02.2011, Justice Kailash Gambhir, Suman Khanna Vs Muneesh Khanna.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 01.12.2010
Judgment delivered on: 18.02.2011
FAO 439/2003 & Cross Objections No.1788/2003
SMT.SUMAN KHANNA ……Appellant
Through: Mr. R.P. Shukla with Mr.
Ganjanan Kumar, Advocates.
Vs.
SHRI MUNEESH KHANNA ……Respondent
Through: Mr. K.R. Chawla, Advocate.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J.
*
1. By this appeal filed under Section 28 of the Hindu
Marriage Act, 1955 the appellant seeks to set aside the
judgment and decree dated 3rd June, 2003 passed by the
learned Addl. District Judge, Delhi, whereby the petition filed
by the respondent under Section 13(1) (ia) and (ib) of the
Hindu Marriage Act was allowed and the marriage between
the parties was dissolved on the ground of cruelty under
Section 13(1) (ia) of the said Act.
2. Brief facts of the case relevant for deciding the
present appeal are that the parties got married on 13.4.90 at
Delhi according to Hindu rites and ceremonies. Problems
started from the very inception of the marriage from the time
of the honeymoon and continued till the time they stayed
together. The main allegation of the respondent was that the
appellant was under the influence of her parents and would
leave the matrimonial home time and again. Disturbed by the
cruel conduct of the appellant, the respondent filed a petition
for divorce on the ground of cruelty and desertion which vide
judgment and decree dated 3. 6.03 was granted on the
ground of cruelty. Feeling aggrieved with the same, the
appellant has preferred the present appeal.
3. Mr.R.P.Shukla, learned counsel appearing for the
appellant contended that the Exhibit PW- 1/1, on which
reliance has been placed by the learned trial court, was
forcefully got signed from the appellant. The contention of the
counsel was that the respondent husband clearly told the
appellant that if she wanted to save her marriage then she
had to sign the said agreement. Counsel thus submitted that
the said agreement was not signed by the appellant out of her
own will and volition, but only with a view to save her
matrimony. So far the allegation of suicide against the
appellant is concerned, counsel contended that the
respondent in his own cross-examination has admitted the
fact that the appellant could not have inserted her finger in
the socket due to the narrow width of the hole. Counsel
further submitted that the respondent had also admitted in
his cross-examination that there were no power plugs in any
portion of the tenanted home where the parties were living
together. Counsel also submitted that the respondent also
failed to prove the fact that the appellant made any attempt to
commit suicide by laying herself in front of the DTC bus. The
contention of the counsel was that the appellant being a
working woman has been travelling quite often in the DTC
buses and, therefore, she was not expected to take such a
step. Counsel also submitted that so far the affidavit Exhibit
PW- 1/2 is concerned, firstly the same was not proved in
accordance with the law and secondly nobody would execute
such an affidavit unless the same was to be filed in a court of
law. Counsel for the appellant further submitted that the
allegation of the respondent that he was not served with
dinner when he visited his in laws in the month of May, 1990
is highly improbable. The contention of counsel for the
appellant was that it would be inconceivable that once the
husband was invited over dinner by the in-laws then he would
not be served with dinner while the other family members
would take dinner. Counsel thus stated that the learned Trial
Court has wrongly placed much reliance on this incident,
which in the given circumstances was highly improbable.
4. Counsel for the appellant further submitted that
even the incident of 9.5.90 lacks any credibility as the
respondent himself has admitted the fact that it was a
working day when he extended invitation to his friend Mr.
Kaushal Kumar Malik for lunch. The contention of counsel
was that the appellant was also working in the same office
and, therefore, on a working day it was highly improbable
that the husband would send his wife to the residence to
prepare lunch for all the three persons. Counsel also
submitted that the said witness Mr. Kaushal Kumar Malik was
not produced in evidence by the respondent and for
withholding the said material witness the learned Trial Court
ought to have drawn an adverse inference against the
respondent. Counsel also submitted that the respondent in
his cross examination admitted the fact that he reached back
home at 4.00 P.M. on 9.5.1990 alongwith his friend which
cannot be a usual time for taking lunch as the respondent in
his cross examination admitted the fact that usually he took
lunch at 2 p.m or 2.30 p.m. Counsel also submitted that no
quarrel or any incident had taken place on 9.5.1990. PW—2
Smt. Nirmala Tiwari in her evidence clearly admitted the fact
that no fight took place between the parties on 9.5.1990.
Counsel contended that no evidence was led by the
respondent to prove the fact that the appellant had cut short
the honeymoon trip at the instance of her parents and even in
the absence of any proof the learned trial court has heavily
relied upon the said allegation. Counsel submitted that the
respondent also did not prove the fact that after cutting short
the said honeymoon trip he had joined the office before the
leave period expired. Counsel further submitted that the
parties would not have stayed at Ambala after their return
from honeymoon had there been any curtailment in the
honeymoon period at the instance of the appellant. Counsel
also submitted that it is not the case of the respondent that
the appellant had immediately gone to the house of her
parents after returning from honeymoon. Counsel submitted
that the respondent failed to prove on record that any
complaint was lodged by the appellant with the RBI Women
Forum as no evidence was led by the respondent to prove
such a fact. Counsel further submitted that a false allegation
was leveled by the respondent that he was not being allowed
to visit his parents’ house at Ambala and the falsity of this
allegation is apparent from the fact that even the delivery of
the first child had taken place at Ambala while better medical
facilities were available in Delhi. Counsel further submitted
that the learned trial court has also given a wrong finding
with regard to Ex. PW1/3 dated 14.8.90, as the said document
was neither signed by the appellant nor by her parents. PW 3
Mr. B.L Chawla has also deposed in his evidence that the said
document was not signed by the appellant. In support of his
arguments, counsel for the appellant placed reliance on the
judgment of the Hon’ble Supreme Court in the case of Neelam
Kumar Vs. Dayarani JT 2010 (6) SC 441.
5. Refuting the arguments of counsel for the
appellant, Mr. Chawla counsel for the respondent submitted
that the appellant in her cross examination as RW—1 has duly
admitted not only her own signatures but the signatures of
her mother and brother on Ex. PW1/1 and same is the position
so far her affidavit Ex. PW1/2 is concerned. The contention of
the counsel was that appellant is a well educated lady holding
M.Com degree and therefore she had signed the said
document after having fully gone through the contents of the
same and it was never the case of the appellant that she had
signed the said document to save her marriage.
6. Counsel further submitted that differences
between the parties had arisen right at the beginning of their
married life and the appellant had left the matrimonial house
on 5.6.90. The contention of the counsel was that the said
agreement dated 14.6.90 was signed by the appellant after
fully realizing her faults and the respondent wanted to
ensure that she would not repeat any such acts again.
Counsel thus submitted that a detailed affidavit was signed by
the appellant which was duly witnessed by the parents of the
appellant and father of the respondent and other witnesses.
Counsel further submitted that the appellant in her crossexamination
also admitted the fact that she was not happy
during her stay at Shimla. Counsel also submitted that the
appellant did not cross-examine PW—2, Smt. Nirmala Tiwari
on her deposition with regard to the attempts made by the
appellant to commit suicide, first time by making an attempt
to insert her finger in the socket and second time by
threatening to come under the DTC bus. PW—2 further
confirmed the visit of Mr. Kaushal Malik on 9.5.90 and she
was not cross-examined by the appellant so as to refute the
visit of Mr. Kaushal Malik on that day.
7. Counsel for the respondent further argued that the
respondent had duly proved on record the incident which had
taken place on 05.06.1990 when the respondent was
humiliated by the father of the appellant in the presence of
the local people. Drawing attention of this Court to the crossexamination
of PW-1, counsel submitted that the visit of the
appellant’s parents to the matrimonial house at Multan Nagar
on 05.06.1990 has been duly admitted by the appellant
herself, as suggestion was given by the appellant to the
respondent confirming the visit of the appellant’s parents on
the said date. Counsel also stated that Ex.PW-1/1 and Ex.PW-
1/2 were executed by the appellant keeping in view the entire
background of the facts of the preceding dates. Counsel also
stated that the visit of Mr. Kaushal Kumar Malik has been
duly admitted by the appellant herself, although she has taken
a stand that he was invited for tea and there was no provision
in the house to offer lunch to him. Counsel also stated that
visit of Mr.Kaushal Kumar Malik has also been confirmed by
PW-2 Smt.Nirmala Tiwari in her evidence. In support of his
arguments, counsel for the respondent placed reliance on the
following judgments:
(i) Naveen Kohli vs. Neelu Kohli I (2006) DMC 489 SC
(ii) Sujata Uday Patil vs. Uday Patil I (2007) DMC 6 SC
(iii) Pranati Chatterjee vs. Goutam Chatterjee I (2007) DMC 89
DB –Calcutta High Court
(iv) Rita Das Biswas vs. Trilokesh Das Biswas I (2007) DMC 96
DB –Gauhati High Court
(v) Sanghamitra Ghosh vs. Kajal Kumar Ghosh I (2007) DMC
105 SC
(vi) M/s Chunni Lal vs. Hartford Fire Insurance AIR 1958 Punjab
440
(vii) Traders Syndicate vs. Union of India AIR 1983 Calcutta 337
(viii) Mahant Mela Ram vs. SGPC AIR 1992 P & H 252
8. I have heard learned counsel for the parties at considerable length and gone through the records.
9. The respondent had filed a petition under Section
13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 and vide
judgment and decree dated 03.06.2003, the learned trial
court allowed the petition of the respondent on the ground of
cruelty under Section 13 (1) (ia) of the said Act, while on the
ground of desertion, the petition was dismissed. Feeling
aggrieved with the said judgment and decree, the appellantwife
has preferred the present appeal, while a cross-appeal
was also filed by the respondent challenging the finding of the
learned trial court dismissing the petition of the respondent
under Section 13 (1) (ib) of the said Act on the ground of
desertion.
10. During the course of arguments, learned counsel
for the respondent did not press the cross-appeal filed by the
respondent and, therefore, arguments were heard by this
Court confining to the challenge made by the appellant to the
said judgment and decree dated 03.06.2003.
11. The prime incidents of cruelty mainly relied upon
by the learned trial court in the impugned judgment and
decree dated 03.06.2003 can be enumerated as under:-
(i) As per the respondent, the agreement and affidavit
dated 14.6.90 duly proved on record by the respondent
as Ex.PW-1/1 and Ex. PW-1/2 respectively, clearly
reflect that there was a constant interference of the
parents of the appellant in the matrimony as the
appellant was under the constant influence of her
parents and she used to leave the matrimonial house
time and again at the instance of her parents.
(ii) The appellant made an attempt to commit suicide by
inserting her finger in the socket in the first week of
August, 1990 and once she also gave a threat to commit
suicide by laying before the DTC bus.
(iii) The document Ex.PW-1/3 was proved on record by
PW-3 Shri B.L.Chawla to prove the fact that the
appellant had left the company of the respondent at the
instance of her parents. By this document also, the
respondent proved the continuous interference of the
parents of the appellant in their matrimonial life.
(iv) Humiliation of the respondent when a colleague of the
respondent Mr.Kaushal Malik was not served with
lunch on 09.05.1990, although he was invited for lunch
and the appellant was sent back home from her office to
prepare lunch for them.
(v) On 5.6.90, both the parents of the appellant came to the
matrimonial home at Multan Nagar and the father of
the appellant was drunk and created a scene outside
the house by alleging that the respondent had taken
dowry in the marriage and that the appellant is not
being given food.
(vi) Physical assault of the respondent by the father of the
appellant at appellant’s parental house in the presence
of the appellant after the celebration of their first
marriage anniversary at Ambala on 13.4.91.
(vii) Manhandling of the respondent by the brother of
the appellant on 03.07.1991, the incident which
happened in the presence of the land lady Mrs.Nirmala
Tiwari and a tenant Mrs.Jain.
12. The marriage between the parties was solemnized
according to Hindu rites and ceremonies on 13.04.1990 and
the relationship between the parties soured right from the
very beginning. As per the respondent, their honeymoon trip
was curtailed due to the intervention of the parents of the
appellant. Execution of the agreement and the affidavit just
within a period of about two months of the marriage no doubt
is an unusual step, but the precise question which would arise
is that under what circumstances the need arose for the
parties to execute the agreement Ex.PW-1/1 and for the
respondent to sign the affidavit Ex.PW-1/2.
13. Learned counsel for the appellant vehemently
argued that the said affidavit and the agreement were signed
by the appellant just with a view to save her marriage, as
otherwise she would not have agreed to sign the said
documents. Undoubtedly, both the parties are well educated
and were employed in the same Bank and it cannot be easily
believed that the appellant would have signed such a detailed
agreement duly supported by her affidavit without there
being any background of repeated visits of the appellant to
her parental home and constant interference of the parents of
the appellant in her matrimonial life. So far the averments of
the agreement and affidavit highlighting the fact that there
was no exchange of dowry articles and only a few articles
were presented in the marriage and that the marriage was a
simple affair , this Court does not find anything wrong in the
same as due to stringent criminal provisions, the parents and
the family members of the husband often become the easy
targets and victims of humiliation and embarrassment visiting
the Crime Against Women Cell, Police Stations and the Courts
and sometimes to the extent of suffering imprisonment. It was
probably to save such a situation, that the aforesaid
assertions relating to dowry articles must have been inserted
in the said agreement and affidavit. Through the said
affidavit, the parents of the appellant also gave some sort of
assurance to the respondent that they will not interfere in any
manner whatsoever in the matrimonial lives of the parties.
Such a written statement given by the parents of the
appellant does give strength to the plea of the respondent
that there was a constant interference from the side of the
parents and family members of the appellant in their
matrimonial life. The said agreement and the affidavit have
not been disputed by the appellant. The agreement is also
signed by the appellant, her parents as well as her brother
and from the side of the respondent, the respondent himself,
his father Mr. Kedar Nath Khanna, Mr O.P Tiwari and Mr. K.K
Malik. The plea taken by the appellant that the said affidavit
and the agreement were signed by her under threat is not at
all convincing as the said affidavit and the agreement were
not only signed by the appellant herself but by her parents
and brother as well. The appellant has also taken a plea in her
written statement that the respondent had procured her
signatures on blank papers and blank stamp papers and even
she had signed the suicide note with a view to save her
marriage, but no weightage can be given to such
unsubstantiated pleas as the appellant has not produced her
parents and her brother in the witness box to prove her
defence that the said documents were executed by all of them
under the alleged threat of the respondent. There is thus no
reason to disbelieve the said documents duly proved on
record as Ex.PW-1/1 and PW-1/2 which give a clear picture
about the continuous interference of the parents in the
matrimonial life of the appellant and her husband.
14. The second incident, on which reliance was placed by
the learned trial court to grant decree of divorce on the
ground of cruelty, was that the appellant had once attempted
to commit suicide by inserting her finger in the socket and
second time when she had given a threat to lay down before
the DTC bus. This testimony of the respondent-husband was
duly corroborated by PW-2 Smt.Nirmala Tiwari, the land lady
of the house, who is an independent witness. The learned trial
court has rightly given due credence to the testimony of PW-2
Smt.Nirmala Tiwari, who in her cross-examination, deposed
that in her presence the appellant gave a threat of committing
suicide by coming in front of DTC bus. PW-2 also supported
the testimony of the respondent-husband with regard to the
attempt made by the appellant in the year 1990 to commit
suicide by putting her finger in the socket. The argument of
counsel for the appellant that the width of the socket was too
narrow for the insertion of the finger lacks force as it is not
the case of the respondent that literally she had put her finger
inside the socket and had it been so then certainly the
appellant would have received an electric shock, which is not
the case of the respondent in the divorce petition.
15. Considering the next incident with regard to the
document Ex. PW 1/3, the argument of counsel for the
appellant was that Ex.PW-1/3 dated 14.08.1990 was neither
signed by the appellant nor by her parents and, therefore, no
weightage could have been given by the learned trial court to
such a document. This argument of learned counsel for the
appellant is devoid of any force as Mr.B.L.Chawla entered the
witness box and proved the said document as Ex.PW-1/3. The
appellant has not disputed the fact that she left the
matrimonial house on 14.08.1990 when the said writing was
executed by Mr.B.L.Chawla. Simply because the said
document was not signed by the appellant and her parents
would not imply that no meeting was arranged of the people
of the locality on 14.08.1990 or that the appellant did not take
the decision to leave the matrimonial home on 14.08.90.
16. Coming to the next incident of 9.5.1990 when a
friend of the respondent husband was invited for lunch at
their house, the argument of the counsel for the appellant was
that the respondent did not suffer any humiliation, as the
respondent could not have invited his friend for lunch on a
working day. The contention of counsel for the appellant was
that the name of Mr.Kaushal Kumar Malik was duly enlisted
in the list of witnesses of the respondent, but still he was not
produced in the witness box to depose and therefore the
learned trial court should have drawn an adverse inference
against the respondent. This argument of counsel for the
appellant is also devoid of any merit. No doubt Mr. Kaushal
Kumar Malik would have been the best witness to prove the
alleged humiliation inflicted by the appellant on the
respondent on that day when he was invited for lunch, but
considering the fact that PW2 Smt. Nirmala Tiwari, who is the
landlady of the respondent and is residing in the same very
property in her deposition confirmed the visit of the said
friend Mr. Kaushal Kumar Malik on 9.5.1990 and also the fact
that the appellant in her deposition also admitted the visit of
Mr. Malik on the same day, therefore, withholding of the said
evidence of Mr. Kaushal Kumar Malik will not prove fatal to
the case of the respondent. The appellant in her examinationin-
chief has admitted the fact that she had served the said
friend with tea and biscuits and on that the respondent
started quarrelling with her in the presence of the said friend
on the ground that she had not prepared food for him. The
explanation given by the appellant for not preparing the food
in her examination-in-chief is that there was no provision in
the house and secondly because it was not the time for
dinner. This explanation given by the appellant cannot hold
any water. To say that there was no provision in the house for
preparing lunch and the time when the said friend of the
respondent visited the house was not suitable for dinner,
cannot be accepted as once the husband and wife are both
earning and are residing together the kitchen of the house is
expected to be properly equipped with necessary grocery and
eatable items. So far question of timing for lunch is
concerned, the same can always vary and lunch at 4 p.m in
metropolitan cities like Delhi is not that unusual.
17. So far the incident of 05.06.1990 when the
respondent was alleged to have been humiliated by the father
of the appellant in the presence of the local people is
concerned; it was proved on record by the respondent that
the parents of the appellant had visited the matrimonial house
at Multan Nagar on 05.06.1990. The affidavit and the
agreement which were executed by the appellant and her
parents on 14.06.1990 also clearly suggest that the said
incident of 05.06.1990 was a pre-cursor to the execution of
the said documents. The testimony of the respondent about
the said incident of 05.06.1990 remained unrebutted as
nothing contrary to the same could be elicited by the
appellant from the respondent during his cross-examination.
19. Without going into the other allegations of cruelty
leveled by the respondent and the minor contradictions in the
cross-examination of the evidence of the respondent and the
two witnesses adduced by him, there is no room to disbelieve
the case of the respondent duly proved by him with the help
of the said two witnesses PW 2 and PW3. I also do not find
any infirmity in the finding of the learned Trial Court taking a
view that the agreement and the affidavit proved on record by
the respondent as Exhibit PW 1/1, PW 1/2 explicitly show that
there was a regular interference from the side of the parents
of the appellant and she used to leave the matrimonial home
at their provocation and instigation and due to that there
arose a need to execute the said documents.
20. Now the question that arises before the court is
that whether the above said acts proved by the respondent
amount to ―cruelty‖ as envisaged under section 13(1) (ia) of
the Hindu Marriage Act, 1955 for dissolution of marriage.
Cruelty has not been defined in the Act and rightly so as it is
not possible to put this concept in a strait jacket formula.
Cruelty can be physical or mental, intentional or
unintentional. The present is a case of mental cruelty where
the respondent husband has alleged that the behaviour of the
appellant caused him mental pain, suffering and humiliation.
But it cannot be lost sight of the fact that the normal wear
and tear of married life cannot be stretched too far to be
regarded as cruelty for the purposes of this section. The
conduct complained of should be grave and weighty so as to
satisfy the conscience of the court that the relationship
between the parties has deteriorated to such an extent that it
cannot be reasonably expected by them to live together
without mental pain, agony and distress. The Hon’ble Apex
Court in the case of Samar Ghosh vs. Jaya Ghosh (2007) 4
SCC 511 after analyzing all the case laws of India and other
countries gave a non exhaustive list of acts that may amount
to mental cruelty. It was held that:
“72. On proper analysis and scrutiny of the judgments of this
Court and other Courts, we have come to the definite
conclusion that there cannot be any comprehensive definition of
the concept of 'mental cruelty' within which all kinds of cases of
mental cruelty can be covered. No court in our considered view
should even attempt to give a comprehensive definition of
mental cruelty.
……
74. No uniform standard can ever be laid down for guidance,
yet we deem it appropriate to enumerate some instances of
human behavior which may be relevant in dealing with the
cases of 'mental cruelty'. The instances indicated in the
succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make
possible for the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of
the parties, it becomes abundantly clear that situation is such
that the wronged party cannot reasonably be asked to put up
with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes
the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by
the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of
the spouse.
(vi) Sustained unjustifiable conduct and behavior of one spouse
actually affecting physical and mental health of the other
spouse. The treatment complained of and the resultant danger
or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of
the married life which happens in day to day life would not be
adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to
cruelty. The ill-conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent
that because of the acts and behavior of a spouse, the wronged
party finds it extremely difficult to live with the other party any
longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
sterilization without medical reasons and without the consent or
knowledge of his wife and similarly if the wife undergoes
vasectomy or abortion without medical reason or without the
consent or knowledge of her husband, such an act of the
spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity
or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may amount to
cruelty.
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law in
such cases, does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of
the parties. In such like situations, it may lead to mental
cruelty.”
21. Cruelty thus depends on case to case basis and
what may be cruelty in one case may not be cruelty in the
other. Sometimes a taunt or an insult may be more painful
than a physical assault. The factors that may be considered
are the social status of the parties, the economic background,
education and upbringing, for coming to the conclusion
whether the conduct complained of would touch the pitch of
severity which would make it impossible for the parties to live
with each other. The incidents alleged in the present case are
of a nature where apart from the actual physical assault by
the brother and father of the appellant on different occasions,
evidently the appellant has herself not fulfilled her marital
obligations. The parties got married on 13.4.90, and on the
honeymoon itself there arose differences between them. The
appellant left the house for the first time within two months of
her marriage which is highly unusual for a newly married lady
unless something catastrophic takes place. The petition for
divorce was filed by the respondent on 15.1.92, just within a
period of almost two years from the date of the marriage
demonstrating that the desiderata of matrimony,
understanding and tolerance were abysmally amiss between
the parties. It was also proved on record by the respondent
that the appellant had threatened to commit suicide on two
occasions. It was held by the Apex Court in the case of N.G
Dastane vs S.Dastane AIR 1975 SC 1534 that the threat
by the spouse to put an end to her own life would amount to
cruelty. It was further reiterated by this court in the case of
Smt.Savitri Balchandani vs. Mulchand Balchandani AIR
1987 Delhi 52 and now recently by the Bombay High Court
in 2009 in the case of Mrs. Sanjivani Vs. Mr. Bharat that
the threat by the wife to commit suicide would come in the
ambit of mental cruelty. The threat of ending her life by the
wife and constant bickering to the extent that the husband
has to invariably make sure that she does not take an extreme
step to commit suicide would undoubtedly create a hostile
atmosphere where the wife would treat the husband as her
enemy and would certainly cause great stress to the husband.
Hence, the persistent piquing conduct of the appellant in the
present case is antithetic to the natural love, affection, trust
and conjugal kindness and has caused to the respondent
mental pain, agony and suffering which amounts to mental
cruelty as envisaged under section 13(1) (ia) of the Act.
22. It is often found that the malaise of the interference of
parents in the married life of their daughters has become a
major cause playing havoc with the matrimonial lives of young
couples. All the parents guide, teach and discipline their
daughters and are concerned about her welfare after
marriage but it is imperative for the parents to draw a line as
the prime concern should be that their daughter is happily
settled in a new atmosphere at the husband’s place but not
with day–to-day monitoring of the affairs taking place at the
matrimonial home of the daughter. Parents should not
become uninvited judges of the problems of their daughter,
becoming an obstacle in the daughter’s married life, to plant
thoughts in her mind and gain control over her and promoting
disharmony in her family life. They are expected to advise,
support and believe in their upbringing maintaining a discreet
silence about the affairs of the matrimonial relationship. The
present case is an unfortunate example where the parents of
the appellant, instead of putting out the fire have fuelled and
fanned it, resulting in the disruption of the sacred bond of
marriage.
23. Based on the above discussion, this Court does not find
any illegality or infirmity in the impugned judgment and
decree passed by the learned Trial Court. The judgment of the
Apex Court relied upon by the learned counsel for the
appellant in the case of Neelam Kumar (supra) will be of no
help to the case of the appellant as the ground of irretrievable
break down of marriage has not been taken into consideration
to uphold the order of the learned Trial Court.
24. In the light of the foregoing, there is no merit in
the present appeal and the same is hereby dismissed.
February 18, 2011 KAILASH GAMBHIR, J
dc/rkr
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 01.12.2010
Judgment delivered on: 18.02.2011
FAO 439/2003 & Cross Objections No.1788/2003
SMT.SUMAN KHANNA ……Appellant
Through: Mr. R.P. Shukla with Mr.
Ganjanan Kumar, Advocates.
Vs.
SHRI MUNEESH KHANNA ……Respondent
Through: Mr. K.R. Chawla, Advocate.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J.
*
1. By this appeal filed under Section 28 of the Hindu
Marriage Act, 1955 the appellant seeks to set aside the
judgment and decree dated 3rd June, 2003 passed by the
learned Addl. District Judge, Delhi, whereby the petition filed
by the respondent under Section 13(1) (ia) and (ib) of the
Hindu Marriage Act was allowed and the marriage between
the parties was dissolved on the ground of cruelty under
Section 13(1) (ia) of the said Act.
2. Brief facts of the case relevant for deciding the
present appeal are that the parties got married on 13.4.90 at
Delhi according to Hindu rites and ceremonies. Problems
started from the very inception of the marriage from the time
of the honeymoon and continued till the time they stayed
together. The main allegation of the respondent was that the
appellant was under the influence of her parents and would
leave the matrimonial home time and again. Disturbed by the
cruel conduct of the appellant, the respondent filed a petition
for divorce on the ground of cruelty and desertion which vide
judgment and decree dated 3. 6.03 was granted on the
ground of cruelty. Feeling aggrieved with the same, the
appellant has preferred the present appeal.
3. Mr.R.P.Shukla, learned counsel appearing for the
appellant contended that the Exhibit PW- 1/1, on which
reliance has been placed by the learned trial court, was
forcefully got signed from the appellant. The contention of the
counsel was that the respondent husband clearly told the
appellant that if she wanted to save her marriage then she
had to sign the said agreement. Counsel thus submitted that
the said agreement was not signed by the appellant out of her
own will and volition, but only with a view to save her
matrimony. So far the allegation of suicide against the
appellant is concerned, counsel contended that the
respondent in his own cross-examination has admitted the
fact that the appellant could not have inserted her finger in
the socket due to the narrow width of the hole. Counsel
further submitted that the respondent had also admitted in
his cross-examination that there were no power plugs in any
portion of the tenanted home where the parties were living
together. Counsel also submitted that the respondent also
failed to prove the fact that the appellant made any attempt to
commit suicide by laying herself in front of the DTC bus. The
contention of the counsel was that the appellant being a
working woman has been travelling quite often in the DTC
buses and, therefore, she was not expected to take such a
step. Counsel also submitted that so far the affidavit Exhibit
PW- 1/2 is concerned, firstly the same was not proved in
accordance with the law and secondly nobody would execute
such an affidavit unless the same was to be filed in a court of
law. Counsel for the appellant further submitted that the
allegation of the respondent that he was not served with
dinner when he visited his in laws in the month of May, 1990
is highly improbable. The contention of counsel for the
appellant was that it would be inconceivable that once the
husband was invited over dinner by the in-laws then he would
not be served with dinner while the other family members
would take dinner. Counsel thus stated that the learned Trial
Court has wrongly placed much reliance on this incident,
which in the given circumstances was highly improbable.
4. Counsel for the appellant further submitted that
even the incident of 9.5.90 lacks any credibility as the
respondent himself has admitted the fact that it was a
working day when he extended invitation to his friend Mr.
Kaushal Kumar Malik for lunch. The contention of counsel
was that the appellant was also working in the same office
and, therefore, on a working day it was highly improbable
that the husband would send his wife to the residence to
prepare lunch for all the three persons. Counsel also
submitted that the said witness Mr. Kaushal Kumar Malik was
not produced in evidence by the respondent and for
withholding the said material witness the learned Trial Court
ought to have drawn an adverse inference against the
respondent. Counsel also submitted that the respondent in
his cross examination admitted the fact that he reached back
home at 4.00 P.M. on 9.5.1990 alongwith his friend which
cannot be a usual time for taking lunch as the respondent in
his cross examination admitted the fact that usually he took
lunch at 2 p.m or 2.30 p.m. Counsel also submitted that no
quarrel or any incident had taken place on 9.5.1990. PW—2
Smt. Nirmala Tiwari in her evidence clearly admitted the fact
that no fight took place between the parties on 9.5.1990.
Counsel contended that no evidence was led by the
respondent to prove the fact that the appellant had cut short
the honeymoon trip at the instance of her parents and even in
the absence of any proof the learned trial court has heavily
relied upon the said allegation. Counsel submitted that the
respondent also did not prove the fact that after cutting short
the said honeymoon trip he had joined the office before the
leave period expired. Counsel further submitted that the
parties would not have stayed at Ambala after their return
from honeymoon had there been any curtailment in the
honeymoon period at the instance of the appellant. Counsel
also submitted that it is not the case of the respondent that
the appellant had immediately gone to the house of her
parents after returning from honeymoon. Counsel submitted
that the respondent failed to prove on record that any
complaint was lodged by the appellant with the RBI Women
Forum as no evidence was led by the respondent to prove
such a fact. Counsel further submitted that a false allegation
was leveled by the respondent that he was not being allowed
to visit his parents’ house at Ambala and the falsity of this
allegation is apparent from the fact that even the delivery of
the first child had taken place at Ambala while better medical
facilities were available in Delhi. Counsel further submitted
that the learned trial court has also given a wrong finding
with regard to Ex. PW1/3 dated 14.8.90, as the said document
was neither signed by the appellant nor by her parents. PW 3
Mr. B.L Chawla has also deposed in his evidence that the said
document was not signed by the appellant. In support of his
arguments, counsel for the appellant placed reliance on the
judgment of the Hon’ble Supreme Court in the case of Neelam
Kumar Vs. Dayarani JT 2010 (6) SC 441.
5. Refuting the arguments of counsel for the
appellant, Mr. Chawla counsel for the respondent submitted
that the appellant in her cross examination as RW—1 has duly
admitted not only her own signatures but the signatures of
her mother and brother on Ex. PW1/1 and same is the position
so far her affidavit Ex. PW1/2 is concerned. The contention of
the counsel was that appellant is a well educated lady holding
M.Com degree and therefore she had signed the said
document after having fully gone through the contents of the
same and it was never the case of the appellant that she had
signed the said document to save her marriage.
6. Counsel further submitted that differences
between the parties had arisen right at the beginning of their
married life and the appellant had left the matrimonial house
on 5.6.90. The contention of the counsel was that the said
agreement dated 14.6.90 was signed by the appellant after
fully realizing her faults and the respondent wanted to
ensure that she would not repeat any such acts again.
Counsel thus submitted that a detailed affidavit was signed by
the appellant which was duly witnessed by the parents of the
appellant and father of the respondent and other witnesses.
Counsel further submitted that the appellant in her crossexamination
also admitted the fact that she was not happy
during her stay at Shimla. Counsel also submitted that the
appellant did not cross-examine PW—2, Smt. Nirmala Tiwari
on her deposition with regard to the attempts made by the
appellant to commit suicide, first time by making an attempt
to insert her finger in the socket and second time by
threatening to come under the DTC bus. PW—2 further
confirmed the visit of Mr. Kaushal Malik on 9.5.90 and she
was not cross-examined by the appellant so as to refute the
visit of Mr. Kaushal Malik on that day.
7. Counsel for the respondent further argued that the
respondent had duly proved on record the incident which had
taken place on 05.06.1990 when the respondent was
humiliated by the father of the appellant in the presence of
the local people. Drawing attention of this Court to the crossexamination
of PW-1, counsel submitted that the visit of the
appellant’s parents to the matrimonial house at Multan Nagar
on 05.06.1990 has been duly admitted by the appellant
herself, as suggestion was given by the appellant to the
respondent confirming the visit of the appellant’s parents on
the said date. Counsel also stated that Ex.PW-1/1 and Ex.PW-
1/2 were executed by the appellant keeping in view the entire
background of the facts of the preceding dates. Counsel also
stated that the visit of Mr. Kaushal Kumar Malik has been
duly admitted by the appellant herself, although she has taken
a stand that he was invited for tea and there was no provision
in the house to offer lunch to him. Counsel also stated that
visit of Mr.Kaushal Kumar Malik has also been confirmed by
PW-2 Smt.Nirmala Tiwari in her evidence. In support of his
arguments, counsel for the respondent placed reliance on the
following judgments:
(i) Naveen Kohli vs. Neelu Kohli I (2006) DMC 489 SC
(ii) Sujata Uday Patil vs. Uday Patil I (2007) DMC 6 SC
(iii) Pranati Chatterjee vs. Goutam Chatterjee I (2007) DMC 89
DB –Calcutta High Court
(iv) Rita Das Biswas vs. Trilokesh Das Biswas I (2007) DMC 96
DB –Gauhati High Court
(v) Sanghamitra Ghosh vs. Kajal Kumar Ghosh I (2007) DMC
105 SC
(vi) M/s Chunni Lal vs. Hartford Fire Insurance AIR 1958 Punjab
440
(vii) Traders Syndicate vs. Union of India AIR 1983 Calcutta 337
(viii) Mahant Mela Ram vs. SGPC AIR 1992 P & H 252
8. I have heard learned counsel for the parties at considerable length and gone through the records.
9. The respondent had filed a petition under Section
13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 and vide
judgment and decree dated 03.06.2003, the learned trial
court allowed the petition of the respondent on the ground of
cruelty under Section 13 (1) (ia) of the said Act, while on the
ground of desertion, the petition was dismissed. Feeling
aggrieved with the said judgment and decree, the appellantwife
has preferred the present appeal, while a cross-appeal
was also filed by the respondent challenging the finding of the
learned trial court dismissing the petition of the respondent
under Section 13 (1) (ib) of the said Act on the ground of
desertion.
10. During the course of arguments, learned counsel
for the respondent did not press the cross-appeal filed by the
respondent and, therefore, arguments were heard by this
Court confining to the challenge made by the appellant to the
said judgment and decree dated 03.06.2003.
11. The prime incidents of cruelty mainly relied upon
by the learned trial court in the impugned judgment and
decree dated 03.06.2003 can be enumerated as under:-
(i) As per the respondent, the agreement and affidavit
dated 14.6.90 duly proved on record by the respondent
as Ex.PW-1/1 and Ex. PW-1/2 respectively, clearly
reflect that there was a constant interference of the
parents of the appellant in the matrimony as the
appellant was under the constant influence of her
parents and she used to leave the matrimonial house
time and again at the instance of her parents.
(ii) The appellant made an attempt to commit suicide by
inserting her finger in the socket in the first week of
August, 1990 and once she also gave a threat to commit
suicide by laying before the DTC bus.
(iii) The document Ex.PW-1/3 was proved on record by
PW-3 Shri B.L.Chawla to prove the fact that the
appellant had left the company of the respondent at the
instance of her parents. By this document also, the
respondent proved the continuous interference of the
parents of the appellant in their matrimonial life.
(iv) Humiliation of the respondent when a colleague of the
respondent Mr.Kaushal Malik was not served with
lunch on 09.05.1990, although he was invited for lunch
and the appellant was sent back home from her office to
prepare lunch for them.
(v) On 5.6.90, both the parents of the appellant came to the
matrimonial home at Multan Nagar and the father of
the appellant was drunk and created a scene outside
the house by alleging that the respondent had taken
dowry in the marriage and that the appellant is not
being given food.
(vi) Physical assault of the respondent by the father of the
appellant at appellant’s parental house in the presence
of the appellant after the celebration of their first
marriage anniversary at Ambala on 13.4.91.
(vii) Manhandling of the respondent by the brother of
the appellant on 03.07.1991, the incident which
happened in the presence of the land lady Mrs.Nirmala
Tiwari and a tenant Mrs.Jain.
12. The marriage between the parties was solemnized
according to Hindu rites and ceremonies on 13.04.1990 and
the relationship between the parties soured right from the
very beginning. As per the respondent, their honeymoon trip
was curtailed due to the intervention of the parents of the
appellant. Execution of the agreement and the affidavit just
within a period of about two months of the marriage no doubt
is an unusual step, but the precise question which would arise
is that under what circumstances the need arose for the
parties to execute the agreement Ex.PW-1/1 and for the
respondent to sign the affidavit Ex.PW-1/2.
13. Learned counsel for the appellant vehemently
argued that the said affidavit and the agreement were signed
by the appellant just with a view to save her marriage, as
otherwise she would not have agreed to sign the said
documents. Undoubtedly, both the parties are well educated
and were employed in the same Bank and it cannot be easily
believed that the appellant would have signed such a detailed
agreement duly supported by her affidavit without there
being any background of repeated visits of the appellant to
her parental home and constant interference of the parents of
the appellant in her matrimonial life. So far the averments of
the agreement and affidavit highlighting the fact that there
was no exchange of dowry articles and only a few articles
were presented in the marriage and that the marriage was a
simple affair , this Court does not find anything wrong in the
same as due to stringent criminal provisions, the parents and
the family members of the husband often become the easy
targets and victims of humiliation and embarrassment visiting
the Crime Against Women Cell, Police Stations and the Courts
and sometimes to the extent of suffering imprisonment. It was
probably to save such a situation, that the aforesaid
assertions relating to dowry articles must have been inserted
in the said agreement and affidavit. Through the said
affidavit, the parents of the appellant also gave some sort of
assurance to the respondent that they will not interfere in any
manner whatsoever in the matrimonial lives of the parties.
Such a written statement given by the parents of the
appellant does give strength to the plea of the respondent
that there was a constant interference from the side of the
parents and family members of the appellant in their
matrimonial life. The said agreement and the affidavit have
not been disputed by the appellant. The agreement is also
signed by the appellant, her parents as well as her brother
and from the side of the respondent, the respondent himself,
his father Mr. Kedar Nath Khanna, Mr O.P Tiwari and Mr. K.K
Malik. The plea taken by the appellant that the said affidavit
and the agreement were signed by her under threat is not at
all convincing as the said affidavit and the agreement were
not only signed by the appellant herself but by her parents
and brother as well. The appellant has also taken a plea in her
written statement that the respondent had procured her
signatures on blank papers and blank stamp papers and even
she had signed the suicide note with a view to save her
marriage, but no weightage can be given to such
unsubstantiated pleas as the appellant has not produced her
parents and her brother in the witness box to prove her
defence that the said documents were executed by all of them
under the alleged threat of the respondent. There is thus no
reason to disbelieve the said documents duly proved on
record as Ex.PW-1/1 and PW-1/2 which give a clear picture
about the continuous interference of the parents in the
matrimonial life of the appellant and her husband.
14. The second incident, on which reliance was placed by
the learned trial court to grant decree of divorce on the
ground of cruelty, was that the appellant had once attempted
to commit suicide by inserting her finger in the socket and
second time when she had given a threat to lay down before
the DTC bus. This testimony of the respondent-husband was
duly corroborated by PW-2 Smt.Nirmala Tiwari, the land lady
of the house, who is an independent witness. The learned trial
court has rightly given due credence to the testimony of PW-2
Smt.Nirmala Tiwari, who in her cross-examination, deposed
that in her presence the appellant gave a threat of committing
suicide by coming in front of DTC bus. PW-2 also supported
the testimony of the respondent-husband with regard to the
attempt made by the appellant in the year 1990 to commit
suicide by putting her finger in the socket. The argument of
counsel for the appellant that the width of the socket was too
narrow for the insertion of the finger lacks force as it is not
the case of the respondent that literally she had put her finger
inside the socket and had it been so then certainly the
appellant would have received an electric shock, which is not
the case of the respondent in the divorce petition.
15. Considering the next incident with regard to the
document Ex. PW 1/3, the argument of counsel for the
appellant was that Ex.PW-1/3 dated 14.08.1990 was neither
signed by the appellant nor by her parents and, therefore, no
weightage could have been given by the learned trial court to
such a document. This argument of learned counsel for the
appellant is devoid of any force as Mr.B.L.Chawla entered the
witness box and proved the said document as Ex.PW-1/3. The
appellant has not disputed the fact that she left the
matrimonial house on 14.08.1990 when the said writing was
executed by Mr.B.L.Chawla. Simply because the said
document was not signed by the appellant and her parents
would not imply that no meeting was arranged of the people
of the locality on 14.08.1990 or that the appellant did not take
the decision to leave the matrimonial home on 14.08.90.
16. Coming to the next incident of 9.5.1990 when a
friend of the respondent husband was invited for lunch at
their house, the argument of the counsel for the appellant was
that the respondent did not suffer any humiliation, as the
respondent could not have invited his friend for lunch on a
working day. The contention of counsel for the appellant was
that the name of Mr.Kaushal Kumar Malik was duly enlisted
in the list of witnesses of the respondent, but still he was not
produced in the witness box to depose and therefore the
learned trial court should have drawn an adverse inference
against the respondent. This argument of counsel for the
appellant is also devoid of any merit. No doubt Mr. Kaushal
Kumar Malik would have been the best witness to prove the
alleged humiliation inflicted by the appellant on the
respondent on that day when he was invited for lunch, but
considering the fact that PW2 Smt. Nirmala Tiwari, who is the
landlady of the respondent and is residing in the same very
property in her deposition confirmed the visit of the said
friend Mr. Kaushal Kumar Malik on 9.5.1990 and also the fact
that the appellant in her deposition also admitted the visit of
Mr. Malik on the same day, therefore, withholding of the said
evidence of Mr. Kaushal Kumar Malik will not prove fatal to
the case of the respondent. The appellant in her examinationin-
chief has admitted the fact that she had served the said
friend with tea and biscuits and on that the respondent
started quarrelling with her in the presence of the said friend
on the ground that she had not prepared food for him. The
explanation given by the appellant for not preparing the food
in her examination-in-chief is that there was no provision in
the house and secondly because it was not the time for
dinner. This explanation given by the appellant cannot hold
any water. To say that there was no provision in the house for
preparing lunch and the time when the said friend of the
respondent visited the house was not suitable for dinner,
cannot be accepted as once the husband and wife are both
earning and are residing together the kitchen of the house is
expected to be properly equipped with necessary grocery and
eatable items. So far question of timing for lunch is
concerned, the same can always vary and lunch at 4 p.m in
metropolitan cities like Delhi is not that unusual.
17. So far the incident of 05.06.1990 when the
respondent was alleged to have been humiliated by the father
of the appellant in the presence of the local people is
concerned; it was proved on record by the respondent that
the parents of the appellant had visited the matrimonial house
at Multan Nagar on 05.06.1990. The affidavit and the
agreement which were executed by the appellant and her
parents on 14.06.1990 also clearly suggest that the said
incident of 05.06.1990 was a pre-cursor to the execution of
the said documents. The testimony of the respondent about
the said incident of 05.06.1990 remained unrebutted as
nothing contrary to the same could be elicited by the
appellant from the respondent during his cross-examination.
19. Without going into the other allegations of cruelty
leveled by the respondent and the minor contradictions in the
cross-examination of the evidence of the respondent and the
two witnesses adduced by him, there is no room to disbelieve
the case of the respondent duly proved by him with the help
of the said two witnesses PW 2 and PW3. I also do not find
any infirmity in the finding of the learned Trial Court taking a
view that the agreement and the affidavit proved on record by
the respondent as Exhibit PW 1/1, PW 1/2 explicitly show that
there was a regular interference from the side of the parents
of the appellant and she used to leave the matrimonial home
at their provocation and instigation and due to that there
arose a need to execute the said documents.
20. Now the question that arises before the court is
that whether the above said acts proved by the respondent
amount to ―cruelty‖ as envisaged under section 13(1) (ia) of
the Hindu Marriage Act, 1955 for dissolution of marriage.
Cruelty has not been defined in the Act and rightly so as it is
not possible to put this concept in a strait jacket formula.
Cruelty can be physical or mental, intentional or
unintentional. The present is a case of mental cruelty where
the respondent husband has alleged that the behaviour of the
appellant caused him mental pain, suffering and humiliation.
But it cannot be lost sight of the fact that the normal wear
and tear of married life cannot be stretched too far to be
regarded as cruelty for the purposes of this section. The
conduct complained of should be grave and weighty so as to
satisfy the conscience of the court that the relationship
between the parties has deteriorated to such an extent that it
cannot be reasonably expected by them to live together
without mental pain, agony and distress. The Hon’ble Apex
Court in the case of Samar Ghosh vs. Jaya Ghosh (2007) 4
SCC 511 after analyzing all the case laws of India and other
countries gave a non exhaustive list of acts that may amount
to mental cruelty. It was held that:
“72. On proper analysis and scrutiny of the judgments of this
Court and other Courts, we have come to the definite
conclusion that there cannot be any comprehensive definition of
the concept of 'mental cruelty' within which all kinds of cases of
mental cruelty can be covered. No court in our considered view
should even attempt to give a comprehensive definition of
mental cruelty.
……
74. No uniform standard can ever be laid down for guidance,
yet we deem it appropriate to enumerate some instances of
human behavior which may be relevant in dealing with the
cases of 'mental cruelty'. The instances indicated in the
succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make
possible for the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of
the parties, it becomes abundantly clear that situation is such
that the wronged party cannot reasonably be asked to put up
with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes
the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by
the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of
the spouse.
(vi) Sustained unjustifiable conduct and behavior of one spouse
actually affecting physical and mental health of the other
spouse. The treatment complained of and the resultant danger
or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of
the married life which happens in day to day life would not be
adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to
cruelty. The ill-conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent
that because of the acts and behavior of a spouse, the wronged
party finds it extremely difficult to live with the other party any
longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
sterilization without medical reasons and without the consent or
knowledge of his wife and similarly if the wife undergoes
vasectomy or abortion without medical reason or without the
consent or knowledge of her husband, such an act of the
spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity
or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may amount to
cruelty.
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law in
such cases, does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of
the parties. In such like situations, it may lead to mental
cruelty.”
21. Cruelty thus depends on case to case basis and
what may be cruelty in one case may not be cruelty in the
other. Sometimes a taunt or an insult may be more painful
than a physical assault. The factors that may be considered
are the social status of the parties, the economic background,
education and upbringing, for coming to the conclusion
whether the conduct complained of would touch the pitch of
severity which would make it impossible for the parties to live
with each other. The incidents alleged in the present case are
of a nature where apart from the actual physical assault by
the brother and father of the appellant on different occasions,
evidently the appellant has herself not fulfilled her marital
obligations. The parties got married on 13.4.90, and on the
honeymoon itself there arose differences between them. The
appellant left the house for the first time within two months of
her marriage which is highly unusual for a newly married lady
unless something catastrophic takes place. The petition for
divorce was filed by the respondent on 15.1.92, just within a
period of almost two years from the date of the marriage
demonstrating that the desiderata of matrimony,
understanding and tolerance were abysmally amiss between
the parties. It was also proved on record by the respondent
that the appellant had threatened to commit suicide on two
occasions. It was held by the Apex Court in the case of N.G
Dastane vs S.Dastane AIR 1975 SC 1534 that the threat
by the spouse to put an end to her own life would amount to
cruelty. It was further reiterated by this court in the case of
Smt.Savitri Balchandani vs. Mulchand Balchandani AIR
1987 Delhi 52 and now recently by the Bombay High Court
in 2009 in the case of Mrs. Sanjivani Vs. Mr. Bharat that
the threat by the wife to commit suicide would come in the
ambit of mental cruelty. The threat of ending her life by the
wife and constant bickering to the extent that the husband
has to invariably make sure that she does not take an extreme
step to commit suicide would undoubtedly create a hostile
atmosphere where the wife would treat the husband as her
enemy and would certainly cause great stress to the husband.
Hence, the persistent piquing conduct of the appellant in the
present case is antithetic to the natural love, affection, trust
and conjugal kindness and has caused to the respondent
mental pain, agony and suffering which amounts to mental
cruelty as envisaged under section 13(1) (ia) of the Act.
22. It is often found that the malaise of the interference of
parents in the married life of their daughters has become a
major cause playing havoc with the matrimonial lives of young
couples. All the parents guide, teach and discipline their
daughters and are concerned about her welfare after
marriage but it is imperative for the parents to draw a line as
the prime concern should be that their daughter is happily
settled in a new atmosphere at the husband’s place but not
with day–to-day monitoring of the affairs taking place at the
matrimonial home of the daughter. Parents should not
become uninvited judges of the problems of their daughter,
becoming an obstacle in the daughter’s married life, to plant
thoughts in her mind and gain control over her and promoting
disharmony in her family life. They are expected to advise,
support and believe in their upbringing maintaining a discreet
silence about the affairs of the matrimonial relationship. The
present case is an unfortunate example where the parents of
the appellant, instead of putting out the fire have fuelled and
fanned it, resulting in the disruption of the sacred bond of
marriage.
23. Based on the above discussion, this Court does not find
any illegality or infirmity in the impugned judgment and
decree passed by the learned Trial Court. The judgment of the
Apex Court relied upon by the learned counsel for the
appellant in the case of Neelam Kumar (supra) will be of no
help to the case of the appellant as the ground of irretrievable
break down of marriage has not been taken into consideration
to uphold the order of the learned Trial Court.
24. In the light of the foregoing, there is no merit in
the present appeal and the same is hereby dismissed.
February 18, 2011 KAILASH GAMBHIR, J
dc/rkr
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