In the instant case, it is found that the wife has been unreasonably giving threats to the husband of committing suicide and attempting to commit suicide. If that fact is taken into consideration then filing of a false complaint under Section 498-A of I.P.C. has to be treated as one more act of cruelty. In a decision reported in AIR 2002 SC 591 (Savitri Pandey ..vs.. Prem Chandra Pandey) cited by Shri Paunikar, 15
learned counsel for the respondent, it has been held by Their Lordships of the Supreme Court that the cruelty may be physical or mental and mental cruelty is the conduct of the other spouse which causes mental suffering or fear to the matrimonial life of the other. In the instant case, it can certainly be said that repeated attempts on the part of the wife to pour kerosene on her person must have caused mental suffering and fear in the mind of the petitioner.
Bombay High Court
Second Appeal No.280 Of 1994 vs Aged About 45 Years, Occu: Service on 4 May, 2010
Bench: C. L. Pangarkar
1. This is an appeal by the original petitioner, whose petition for divorce was dismissed by both the courts below.
2. The facts giving rise to the appeal are as follows - The petitioner/appellant was married to the respondent/wife on 19/4/1980 at Nagpur. After the marriage, the petitioner went with his wife to his native place Ramtek. 2
Thereafter, the petitioner and the respondent went to reside at Saoner, where the petitioner was in service as a Surveyor in the office of the Tahsildar. They were living happily. On 15/8/1980, the respondent's father came to Saoner and wanted to take the respondent to Nagpur for festival of Rakhi. The petitioner suggested that the festival is too far away and it would be better if she is taken later some time. The respondent's father, however, insisted and took her away with him along with ornaments etc. Two days thereafter, the father of the petitioner fell ill. He was, therefore, required to go to Ramtek. On way, he went to Nagpur at the house of the respondent's father where the petitioner noticed drastic change in the attitude of the respondent. He came to know there that respondent's father wanted the petitioner to reside at Nagpur and commute between the place of service and Nagpur. After waiting for some time, the petitioner sent his brother to bring the respondent back from Nagpur. She came on 29/8/1980. She was then ill. She was, therefore, taken to a medical practitioner. The respondent once again expressed that the petitioner should shift to Nagpur. The petitioner turned down 3
the demand and since then it is alleged that, the respondent started harassing the petitioner. It is also alleged that the respondent was frequently being required to be given a medical treatment. While they were living at Saoner, the respondent was giving a threat to the petitioner that if he does not shift to Nagpur, she will commit suicide by throwing herself in a well. On 16/10/1980, the petitioner, therefore, informed the neighbours to keep watch on the respondent and left for the office. When he came back, he found that the respondent was taking meals. On 19/10/1980, the petitioner along with the respondent came to Ramtek for festival of Dassehra. At Ramtek, the respondent picked up the quarrel with the mother of the petitioner and once again started threatening that she will commit suicide if she is not taken to Nagpur. The petitioner took her to Nagpur. The parents of the respondent, however, turned deaf-ear to the insistence of the respondent and the petitioner all alone came back to Saoner. The petitioner gave several messages to the respondent to come to Saoner but she did not. On 21/12/1980, she was brought to Saoner by her father. The respondent apologized for lapse on 4
her part and promised to live happily. She, however, lived happily for a period of one and half month and again started reiterating her demand for living at Nagpur. On 27/2/1981, the petitioner again went to Saoner along with the respondent as he was transferred from Saoner to Ramtek. The respondent was then pregnant. She was admitted to the hospital. She delivered of a female child on 14/4/1981 in the hospital at Nagpur. After she came to Ramtek, on 7/6/1981 and 8/6/1981, the respondent tried to set herself on fire after pouring kerosene on her own person. The petitioner snatched away the bottle from her and at her request the petitioner sent a telegram to respondent's father and called him at Ramtek. Her brother, however, came to Ramtek and even in his presence the respondent tried to set herself on fire. Again a telegram was sent to her father, who came in the evening. Instead of trying to convince the respondent not to behave in same fashion, her father gave a threat and returned to Nagpur. The petitioner, therefore, reported the matter to the police. On reaching Nagpur, her father sent a notice to the petitioner. The petitioner, therefore, started collecting certain papers to send a 5
reply. The respondent took out those papers from the box and started burning them. On intervention by the mother of the petitioner, she was beaten and respondent tried to set her on fire. The petitioner again reported the matter to the police. This happened on 26/6/1981. On 28/6/1981, however, the respondent left for Nagpur along with the child and since then she has not come back to the petitioner. The petitioner, therefore, seeks a decree for divorce on the ground of cruelty or in the alternative on the ground of desertion. It is alleged by the petitioner further that after filing of this petition the respondent had filed a case under Section 498-A of the Indian Penal Code against him. He was tried for the same offence and has been acquitted.
3. The respondent resisted the petition. She, however, admitted the relationship. She also admitted that she lived happily at Saoner with the petitioner. She, however, denies that she had given any threat to the petitioner that she would commit suicide. She denied the incident at Saoner as well as at Ramtek. She admits that the petitioner had sent a telegram to her father on 8/6/1981 but, according to her, no such incident 6
had taken place. It is her contention that she was, in fact, ill-treated by the petitioner and the petitioner was taking disadvantage of his own wrong.
4. The learned judge of the trial court found that the petitioner had failed to prove the cruelty or desertion. He, therefore, dismissed the petition for divorce.
5. The appellate court concurred with the findings and dismissed the appeal preferred by the petitioner. Hence, this second appeal.
6. This second appeal was admitted initially by this court on the following substantial question of law.
"Whether the courts below have correctly taken into consideration the post petition circumstances ?
At the time of final hearing, it was found that it was necessary to frame another question of law and an application to that effect was filed by the appellant. Accordingly, one more question of law was formulated, which is as follows - "Whether the courts below have erred in holding that there was no cruelty on the part of the respondent to the petitioner/appellant by misreading the evidence ?
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7. As stated earlier, the appeal was admitted on the question of law and upon hearing, second substantial question of law was framed. A substantial question of law should be such if answered in the affirmative, the result must go in favour of the appellant. To my mind, the substantial question of law, which was initially framed, even if would have been answered in the affirmative, the result of the appeal would not have changed at all. The initial question of law even if answered in the affirmative, would at the most go to prove the condonation of cruelty, if any. In the instant case, both the courts below have held that the petitioner had failed to prove the cruelty. In the circumstances, after hearing the counsel for the parties, the additional substantial question of law was framed.
8. Thus, it is to be seen if the courts below have considered the evidence in a proper perspective or not. If the evidence is found to be not properly considered by the courts below then the judgments of the courts below could be said to be perverse. The cruelty that is pleaded is the alleged threats or attempts to commit suicide on the part of the respondent. The petitioner pleads two instances of attempt to commit suicide on 7/6/1981 8
and 8/6/1981 and one of 26/6/1981. Besides this, the petitioner also pleaded a threat to commit suicide at Saoner. To my mind, if three such incidents have really occurred that may certainly amount to cruelty. It would be too dangerous for a husband to live with such a wife, who repeatedly gives threats of committing suicide and pours kerosene on her person. If such incidents are repeated, it would be a mental harassment and it would be dangerous for the husband because he would unnecessarily invite trouble for himself. To my mind, therefore, if such incidents are proved, it must be held that the petitioner was subjected to cruelty.
9. PW 1 Ramratan states that, on 7/6/1981 the respondent insisted on going to Nagpur and then poured kerosene on her person and asked to call her father immediately. He states that he, therefore, sent a telegram to his father and called her father at Ramtek. He further states that her father did not come but sent his son. He also states that on 8/6/1981 also, the respondent again poured kerosene on her person and then another telegram was sent to the father of the respondent and he was called to Ramtek. He has stated that on 7/6/1981 the 9
respondent had herself given in writing that she would not commit such an act again. That writing is at Exh.93. The courts below had not relied upon the evidence of PW 2 Devaji, who has signed that writing as attesting witness, by observing that the witness says that the respondent had merely signed Exh.93 and this is contrary to the evidence of PW 1 Ramratan. Even if this PW 2 is not relied upon, the question is whether the entire incident has to be treated as concocted one. To my mind, no, and the reasons are as follows -
First, DW 1 Smt.Maya admits of having written this chit (Exh.93). She states in examination-in-chief itself that the petitioner dictated and she wrote the contents. It is, therefore, obvious that this was written by her. The respondent merely states that she was given threats. This would not be enough to say that it was got written from her under duress. When a party comes out with a case of threat having been given, the details and particulars of such threats must be pleaded and proved. The witness Maya does not say a word as to what kind of threats were given to her. The second reason is that respondent Maya admits in cross-examination that the 10
petitioner had sent a telegram to her father and had called her father. She admits of sending of two telegrams of two dates. The telegram (Exh.92) clearly mentions that the respondent had tried to commit suicide. If such incident had not occurred on that day, there was no reason for the petitioner to mention that the respondent had tried to commit suicide. A knowledge could not be attributed to the petitioner that he would be required to file such a telegram in the court and that he will have to show that the respondent had given a threat of committing suicide. The fact that he instantly sent a telegram mentioning this fact of attempt on the part of the respondent to commit suicide clearly goes to show that the story as put up by him could not be concocted one. She also admits of second telegram as stated earlier. It is thus, also, clear that both telegrams were sent with the knowledge of the respondent and it is, therefore, difficult to accept that she was not knowing the contents of the telegram. One cannot, therefore, say that nothing happened on those two days. It is in this context that the evidence of PW 1, to my mind, should have been accepted as true. Further, Exh.94 is the copy of the report to the police 11
station sent on 10/6/1981. This report speaks of said incidents of 7/6/1981 and 8/6/1981 and therefore, corroborates the version of PW 1. The immediate conduct on the part of the petitioner to lodge a report with the police definitely supports his case and corroborates his case. It cannot in any case be said that he had done such things at that time so as to help him to file any case against the respondent.
10. The incident dated 26/6/1981, however, appears to me to be doubtful. PW 1 says that the respondent on that day burnt the papers and tried to set ablaze his mother and he had lodged a report (Exh.96). Exh.96, however, speaks of incident dated 25/6/1981. It, however, appears to me that due to the confusion, the petitioner may have mentioned the date as 26/6/1981 instead of 25/6/1981. Even if we keep the incident dated 26/6/1981 aside, still the incident dated 7/6/1981 and 8/6/1981 definitely go to show the hostile attitude on the part of the respondent. It appears that the petitioner makes a reference to a threat given by the respondent when the parties were living at Saoner. PW 1 Ramratan says that the respondent had given such a threat when they were at Saoner. He states 12
that he had asked his neighbours to keep watch and when he came back he found his wife taking meals. I find that there was no reason to reject this part of the testimony also. If the petitioner at all wanted, he could have exaggerated even this incident but he clearly admits and states that the respondent though gave such a threat was found to be quietly taking meals. This fair statement on the part of the petitioner is itself sufficient to hold that what he was telling was true. This statement has to be accepted in the context of the fact that it appears that the wife is totally reluctant to live with the petitioner. She had not come back to the house of the petitioner right from 1981 until this date. Where a wife every time gives a threat of committing suicide, such conduct has to be held to be amounting to cruelty and a conduct which is annoying. This is not a dispute of a normal nature between husband and wife and can not be treated as a normal wear and tear. The decisions cited by Shri Paunikar, the learned counsel for the respondent, reported in 2010(2) Mh.L.J.891 (Latesh Subhash Kadam ..vs.. Neesha Latesh Kadam) has therefore no bearing on the case at hand.
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11. The petitioner had amended the petition and had contended that the respondent/wife had charged him of having committed offence under Section 498-A of Indian Penal Code. It is not in dispute that the petitioner was acquitted in the said criminal case. It appears from the pleadings as made that the said complaint was filed in the year 1990. The respondent and the petitioner were not at all living together right from 1981 to 1990. There was, therefore, in fact, no occasion for the respondent to have suffered any cruelty at the hands of the petitioner from 1981 to 1990. In spite of this, she filed a criminal complaint, and this once again goes to show her attitude and in this particular circumstance it must be said that this conduct on the part of the respondent certainly would amount to cruelty. In a decision reported in 2009(6) ALL MR 250 (Mrs.Deeplakshmi Sachin Zingade ..vs.. Sachin Rameshrao Zingade), this court had held that filing of the complaint itself can never be considered as an act of cruelty unless it is found by positive evidence that it was a false complaint. In the instant case, the petitioner has been acquitted cleanly and, as stated earlier, the petitioner and 14
respondent have not been living together from 1981 at all. The respondent/wife admits in the last sentence of the cross- examination that she had been living with her parents since 26/7/1981. If she was living with her parents, there was no occasion of her being subjected to cruelty and in spite of that she filed a complaint after eight years that she was harassed. It is, therefore, apparent that the said complaint could be in all circumstances be said to be false one. In yet another decision reported in II (2006) DMC 36 (DB) (Gajjala Shankar ..vs.. Anuradha), Andhra Pradesh High Court has held that mere filing of case for offence under Section 498-A of Indian Penal Code by itself cannot be a good ground to hold that said act amounts to cruelty but when it is coupled with other ground, it may amount to cruelty. In the instant case, it is found that the wife has been unreasonably giving threats to the husband of committing suicide and attempting to commit suicide. If that fact is taken into consideration then filing of a false complaint under Section 498-A of I.P.C. has to be treated as one more act of cruelty. In a decision reported in AIR 2002 SC 591 (Savitri Pandey ..vs.. Prem Chandra Pandey) cited by Shri Paunikar, 15
learned counsel for the respondent, it has been held by Their Lordships of the Supreme Court that the cruelty may be physical or mental and mental cruelty is the conduct of the other spouse which causes mental suffering or fear to the matrimonial life of the other. In the instant case, it can certainly be said that repeated attempts on the part of the wife to pour kerosene on her person must have caused mental suffering and fear in the mind of the petitioner.
12. The next question is whether the petitioner had condoned this act of the cruelty since it is stated by DW 1 Maya that she resided with the petitioner at Gadchiroli after filing of the divorce petition from 26/6/1990 to 3/9/1990. It is due to this statement that this court had framed the initial question of law. To my mind, however, this statement does not appear to be true. The dates as given by the respondent are very specific and material. During this period i.e. 26/6/1990 to 3/9/1990 the petitioner was in the witness box. He was cross-examined by the respondent's counsel on 24/7/1990. If the petitioner was cross-examined during this period then there ought to be 16
at least a suggestion in cross-examination to PW 1 Ramratan that the respondent was living with him with the consent of the petitioner, There is not even a whisper. She does not even file a pursis to that effect during this period that she has been residing with the petitioner. Though the respondent says that she lived with the petitioner from 26/6/1990 to 3/9/1990, she does not say as to why she left the house after 3/9/1990. The fact that she is unable to explain why she did not live after 3/9/1990 suggests that she did not go to the petitioner and there was no occasion for her to leave his company once again. DW 1 Maya has specifically admitted that since 28/6/1981 she is living with her father. Obviously, there was no occasion for her to go to live with petitioner. She does not explain as to how she went to petitioner at Gadchiroli i.e. whether she went voluntarily or at the request of the petitioner. To my mind, this clearly shows that her statement on oath that she was living with the petitioner during this period is at all true.
13. Since I find that the respondent/wife has subjected the husband to cruelty, a decree for divorce must, therefore, follow. 17
In the circumstances, the judgments and decree passed by the courts below are set aside. The appeal is allowed. The marriage between the petitioner and the respondent i.e. the appellant and the respondent stands dissolved by a decree of divorce. The respondent/wife shall pay the costs of the appeal to the appellant. Decree be drawn up accordingly. JUDGE.
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