The position of law is well settled that levelling disgusting
accusations of extra-marital relationship amounts to grave assault on the
character, honour, reputation, status as well as the health of a person. Such
worst form of cruelty,
aspersions which are unsubstantiated constitute
sufficient by itself to constitute cruelty in law. The appellant wife has not
even made an attempt to substantiate the allegations made in Exhibit – 27.
In addition to the letter at Exhibit 27, the evidence adduced by the
respondent husband clearly shows disaffection and refusal of the appellant
wife to cohabit with the respondent husband. The instances narrated by the
respondent husband in his evidence is consistent and clearly shows that the
hostile attitude and persistent non cooperation of the appellant wife had
made life impossible for him, as a result of which he was constrained to
leave his own house and find an alternate accommodation. The appellant in
a letter (Exhibit 50) addressed to the Deputy Commissioner of Police,
Bhandup Police Station has devoted one entire paragraph to the allegations
regarding the illicit relations of the respondent and his plan to eliminate her
on account of the same. Both the spouses have alleged cruelty against the
other. However, respondent husband has sought divorce on the ground of
cruelty and desertion and the appellant wife curiously though has alleged
cruelty by the respondent has not claimed divorce or judicial separation. On
perusal of the evidence of the appellant wife and her witnesses, we find that
the evidence does not inspire confidence, is bereft of details and is
inconsistent and contradictory with regard to the grounds of 'cruelty' and
'desertion' raised by the respondent. The appellant wife had also filed on
record the police complaints lodged by her at Exhibit 55. According to
her,
the
respondent
used to call her and abuse her. However, it is
relevant to note that there is not a whisper with regard to the said
allegations in the appellant's petition for maintenance. Ordinarily, mental
cruelty, in our view, will not depend upon the numerical count of such
incidents or only on the continuous course of such conduct, but would
really go by the intensity, gravity and stigmatic impact it may have, when
meted out even once and the deleterious effect of it on the mental attitude of
a spouse. Considering the allegations and the incidents enumerated in
detail by the respondent husband in the evidence, in our opinion they would
cumulatively constitute 'cruelty' and which became fait accompli the day
the appellant sent the letters at Exhibit 27. In the present case, we are of
the opinion that the Family Court has rightly come to the conclusion that
the appellant husband is entitled to a decree of divorce under section 13(1)
(ia) of the said Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.16 OF 2006
“M”
V/s.
“R”
CORAM:- A. S. OKA AND
REVATI MOHITE DERE, JJ.
13th NOVEMER, 2013
Citation; 2014 (1) Mh L J Bombay 440
Considering that this Judgment would be available in public domain,
we have described the appellant and the respondent as `M' and `R'
respectively.
2.
The appellant wife, takes exception to the Judgment and Decree
dated 1st March, 2005 passed by the learned Judge of the Family Court,
Bandra, Mumbai, in M.J. Petition No.A-1915/1996, by which the marriage
solemnized between the parties i.e. the appellant wife and respondent
husband came to be dissolved by a Decree of Divorce. The respondent
husband had filed a Petition in the Family Court, Bandra, Mumbai on 18 th
October, 1996, praying therein for a decree of divorce on the ground of
cruelty and desertion i.e. under Section 13 (1) (ia) and (ib) of the Hindu
Marriage Act, 1955 (hereinafter referred to as `the said Act').
The
appellant wife had also filed M.J. Petition No. C-130 of 1995, on 15 th
September, 1995 praying therein for maintenance under Section 18 of the
Hindu Adoption and Maintenance Act, which came to be dismissed, by the
same impugned Judgment and Decree dated 1st March, 2005. However, as
the Appellant-wife has not challenged the dismissal of her M.J. Petition
No.C-130/1995, we are in this present Appeal concerned with the challenge
to the Judgment and Decree dated 1st March, 2005, only to the extent, that
it grants decree of divorce to the Respondent - husband under Sections
13(1) (ia) and (ib) of the said Act.
3.
Before adverting to the submissions advanced by the learned
Counsel for the parties, it would be necessary to place on record certain
facts as would be necessary for determination of the issues before us :
The respondent husband had filed a petition in the Family
Court, Bandra, Mumbai seeking divorce on the ground of cruelty and
desertion, under Section 13 (1) (ia) and (ib) of the 'said Act. ' He has stated
in his petition, that his marriage with the appellant was solemnized on 15 th
March, 1971, as per Hindu Vedic Rites at Mumbai, and that there were two
issues from the wedlock. The two sons were aged about 24 and 22 years of
age. He has stated that it was a love marriage and therefore, no inquiries
were made with regard to the appellant wife's background. He has further
stated that he came from a poor family and was working as a peon in a
private firm at Fort, Mumbai in 1962 and it was only in 1964, that he
secured the job of a clerk in 'Automobile Product of India' at Bhandup,
Mumbai. He has stated that he was taking care of his parents and supported
them financially. It was alleged by the respondent husband that after
marriage, the appellant wife disapproved the same and started quarreling
with him and his parents, which compelled him to leave the house along
with the appellant wife. After staying for a couple of months, initially at his
cousin's house and then at a friend's house, they returned back to his
parents' house, as he could not make monetary arrangements for an
independent accommodation.
He has alleged that as differences
continued, he was compelled to take a single room at Dombivli, Mumbai.
However, they returned back to his parents house for the wife's first
delivery and after delivery, within a month, they again went to reside at
Dombivli. The respondent husband has stated that after his father expired in
1973, he wanted to stay with his mother, however, the appellant wife flatly
refused to go back. It is alleged that the appellant wife refused to let him
stay with his mother on the pretext that she and her minor son would be
alone at Dombivli. He has stated that he was shocked to see the indifferent
behaviour of his wife and he went through a great deal of mental tension
her feelings.
and agony but tolerated the same, as he loved her and did not want to hurt
Respondent husband has further stated that he had taken a
loan from the Credit Society of his Office and gone to reside in a single
room at Mulund with his wife and minor son from 30 th December, 1973.
He has stated that he worked hard in order to provide his wife with all the
comforts, however, she always insulted and abused him. The respondent
husband has further stated that the second son was born on 23 rd August,
1974, after which he hoped that his wife would change for the better. He
has further stated that after taking a loan from his Provident Fund and
Bhandari Cooperative Bank, he purchased a two-room kitchen flat at
Mulund in 1980 and a small Gala of about 300 sq. ft. at Thane. He has
alleged that as his wife had insisted that some property should be in her
name, he transferred the Current Account with the Saraswat Cooperative
Bank and the business that he had started in the Gala, in the name and
style as `Ramav Enterprises'
in the name of the appellant wife. He has
stated the he purchased certain equipments required for the business by
taking heavy loans and that he attended to the business after his office hours
He has further stated that as the
and conducted the business himself.
business started prospering, he found it difficult to manage his job and the
business simultaneously and as he had no helping hand in the business, he
was constrained to resign from his job in 1986. He has further stated that
he had invested all the monetary dues which he had received after his
resignation for expansion of his business. It is alleged by the respondent
husband that after his resignation, he had requested the appellant wife to
transfer the business in his name, but she refused, which led to quarrels
between them and finally with great reluctance, she transferred the business
as well as the Bank Account in his name. It is further alleged that his wife's
harassment and ill-treatment got worse and she would very often insult and
abuse him in the most filthy language, in the presence of the children and
that in order to prevent any quarrel, he would remain silent. He has further
alleged that the appellant wife started openly alleging that he was having
illicit relations with his own sister, which came as a great shock to him
resulting in mental trauma, pain and agony and his health deteriorated. It
was also alleged that the appellant started prejudicing the minor children
against him, as a result, they showed no respect for him. The respondent
has given certain instances with regard to the behaviour of the appellant
wife and the filthy language used by her. He alleged that the wife had
prejudiced the children to such an extent, that one of his son attacked him
with a scissor and would openly threaten him that if he did not leave the
house, he would kill him. He has further alleged that his children, at the
instance of the appellant wife, started passing remarks like “Why don't you
die soon?”. He has stated that as a result of the said behaviour he was made
to feel unwelcome in his own house, by the appellant wife who showed
hatred and animosity towards him. He has alleged that the hatred shown by
the appellant wife and the children daily, coupled with threats made it
impossible for him to stay in his own house. It is alleged that the said
conduct of his wife and children affected his health and consequently his
business. He has alleged that the respondent wife even took the house keys
from his possession and instructed him to come home after prior intimation
According to the respondent husband, it was in these
on telephone.
circumstances that he was constrained to leave home on 19th August, 1993.
He has stated that he went to Chiplun with his machinery and
tried to set up the business. He has further stated that on 7 th October, 1993,
he was shocked and surprised to see his wife and son at Chiplun, where
they came and created a nasty scene. He has alleged that his son broke the
glass on a writing table and tried to assault him with a big piece of glass.
As a result, of which he was compelled to lodge a complaint i.e. N.C.
No.2128 against the appellant wife and his son with the Police on 7 th
The respondent husband has further stated that
October, 1993 at Chiplun.
as it was not feasible for him to continue his business at Chiplun due to
innumerable difficulties, he discontinued the business and returned back to
Mumbai in January, 1994 and went to reside with his brother at Kandivli
for about a month.
He has stated that his brother personally met the
appellant wife with a view to bring about a reconciliation between the two.
However, the wife is alleged to have told his brother that when they went to
Chiplun to bring back the respondent, the respondent became mad, and
therefore they cancelled the idea of bringing him to Mumbai. It is alleged
that the wife even warned the respondent's brother that if the respondent
dared to return home, they would make arrangements to get him admitted
into a Mental Asylum. The respondent has further stated that when he went
back to Chiplun in March, 1994, the watchman gave him a notice sent by
an Advocate. He noticed that the same was undated and as per the postal
stamp, it was sent some time in February, 1994. He has alleged that he met
It is alleged by the respondent husband that the
which attempt failed.
the Advocate, who after hearing him, agreed to bring about a settlement,
appellant wife took from the Advocate, the description of the two persons,
who had accompanied him to the Advocate's Office, and from the
description, presumed that one of them was Mr. H. It is stated by the
respondent husband that the appellant wrote a letter to Mr. H dated 25 th
October,
1994 and enclosed another letter dated 3rd November, 1994
addressed to the respondent with it and instructed Mr. H to hand over the
same to the respondent. The said letters are at Exhibits 27 (colly.) The
contents of the letter dated 3rd November, 1994 addressed to the respondent
SQ Pathan
which was sent to Mr. H were extremely derogatory, abusive, filthy and
perverse.
The respondent husband has stated that as he could not get
separate accommodation, he started staying in a workshop at Bhandup and
eating food from the Hotel and managed his day-to-day activities with great
difficulty. It is alleged that the appellant wife only with a view to harass
him lodged a missing complaint with the Mulund Police Station on 6 th June,
1995, inspite of being fully aware that he was in Mumbai and prior to that,
in Chiplun.
He has alleged that on 7th February, 1995, his wife came to his
workshop at Bhandup, abused him in the most filthy language and even
assaulted him. He has alleged that although, he had not harmed her in any
way, the appellant wife lodged a false police complaint against him with the
Bhandup Police Station. The respondent has further stated that the flat,
where the wife and sons are residing, stands in his name and that he had
purchased it out of his own savings and that the flat is fully furnished with
all facilities. He has further stated that although the appellant wife had
transferred the Gala and business in his name, she had taken forcible
possession of the said Gala from one Mr. Amre, to whom, the said Gala was
later on given by him on Leave and License Basis. He has further stated
that it is only on 22nd December, 1995, when the appellant wife made a
statement before the Marriage Counselor, that he learnt that she had already
sold the Gala without consulting him, despite the fact that the same was
purchased with his hard earned money. He has further stated that in view of
the several domestic problems faced by him, he has been staying in a small
room, admeasuring 10 x 10 sq ft. on rental basis. He has alleged that since
the time of his marriage, he has been continuously treated with extreme
physical and mental cruelty by the appellant wife and therefore prayed for a
decree of divorce under Section 13 (1)(ia) of the said Act. He has stated
that he had not condoned the acts of cruelty inflicted on him by the
appellant wife.
He has further stated that from 19th August, 1993, he was
constrained to leave his home and has been continuously deserted by the
appellant wife and has been deprived of his marital right and as such
claimed that he was also entitled for a decree of divorce under Section 13
(1)(ib) of the said Act.
4.
The appellant wife has
made by the respondent husband, as against her.
husband by filing her written statement. She has denied all the allegations
admitted that the respondent was residing with his parents and was
maintaining them. According to the appellant, her sister-in-law came from
her native place and started residing with them. The appellant has alleged
that her mother-in-law was interested in keeping her own daughter and
therefore drove her and the respondent out of the house. The appellant has
admitted that they went and stayed at Bhandup and later came back to her
in-laws house. According to the Appellant, when she was eight months
pregnant, she was driven out of the house by her mother-in-law and sister-
in-law after a quarrel. She has alleged that the respondent did not inform
her of the sale of the Dombivli flat nor gave her any money from the sale
proceeds. The appellant has denied that she gave any mental tension to the
respondent. She has admitted that she started residing at Mulund with the
respondent from December 1973 and at Mulund from 1980, but claimed
ignorance about the sources of funds for purchase of the same. According to
her, she was making payment towards the loan from the business which she
was running in the name of 'Ramav Enterprises'. She has stated that the
gala was purchased by her from her own savings. According to the
appellant she had written a letter to the respondent, alleging illicit relations
with his sister as a rebound and in anger as the respondent had alleged that
she had illicit relations with her son. According to her, there was nothing
for respondent to be shocked and surprised, as he deserved the same for
making irresponsible allegations against the sons.
The appellant has
alleged that the respondent would tell the children that they were her agents
and were helping her in her bad activities, which was untrue. She denied
having poisoned the children against the respondent. She also denied that
the son threw a scissor at the respondent and threatened to kill him.
The appellant has admitted that the respondent left home in August,
5.
1993, but has stated that it was out of his own free will. She has denied the
Chiplun incident. She admits that the respondent came back to Mumbai
and started residing with his brother. According to her she tried bringing
him back, but he refused. She has denied having lodged a false case with
the police. She has stated that it was the respondent who ill treated her and
the sons. According to her, as the respondent left on his own accord and as
she had not treated him with cruelty, he was not entitled for divorce under
Section 13 (1) (ia) (ib) of the Hindu Marriage Act.
It is pertinent to note, that during the pendency of the said petition i.e.
6.
M.J. Petition No.A-1915/1996 filed by the respondent husband, an
application came to be preferred by him, seeking amendment to his petition
in January, 2000. Certain details of acts constituting cruelty and desertion
were set out in the said amendment, which came to be granted by the
learned Judge. It was alleged by the respondent; that on account of a flimsy
quarrel on 10th July, 1993, the appellant started abusing him in filthy
language and threw utensils on him when he asked her to lower her voice.
It was further alleged that the appellant would threaten to commit suicide
and put him behind bar forever, if he did not concede to her demands. The
respondent had also alleged that the appellant had refused to keep marital
relations with him since August 1993, when she compelled him to leave the
matrimonial home and thereafter prevented him from entering the house.
7.
She denied all the allegations.
8.
The Appellant replied to the aforesaid allegations by filing her reply.
The learned Family Court Judge, Bandra framed issues on the basis
Thereafter the parties adduced evidence before the
of both the petitions.
9.
Family Court.
It would also be necessary to advert to the evidence adduced by the
parties in support of their claim. The respondent husband in support of his
claim for divorce, examined himself (Exhibit 17), witness Mr. S - a family
friend and neighbour of the respondent husband (Exhibit 41), Witness Mr.
ig
H – a colleague of the respondent husband who was working with him in
the same company (Exhibit 42) and to whom letter (Exhibit 27) was
addressed and his daughter in law (Exhibit 88).
The appellant wife
examined herself (Exhibit 44), and her son (Exhibit 93) and jeweller Mr. J
(Exhibit- 101).
The evidence of the respondent husband is consistent with the
10.
averments set out in the marriage petition and has already been set out
hereinbefore. He has produced two letters sent to Mr. H – one addressed to
Mr. H and one addressed to him sent on Mr. H's address. The said letters
are dated 25th October, 1994 and 3rd November, 1994 respectively. It is
pertinent to note that the said letters have been admitted by the appellant
wife. He has stated that in the said letter addressed to the respondent, the
appellant wife had alleged that the respondent was having illicit relations
with his sister and sister-in-law and has also used filthy and abusive
language against him.
There is no cross-examination on certain specific
averments with regard to the alleged acts of cruelty deposed to by the
The second witness examined by the respondent husband is one Mr. S
11.
respondent husband.
in support of his claim. The said witness was examined with regard to
certain documents with regard to the business and transfer of business from
the appellant wife to the respondent. It is not relevant for us to deal with
the evidence of the witness or his cross-examination, as the said witness has
not been examined with regard to the alleged acts of cruelty or with regard
to desertion, with which we are concerned in the present Appeal.
suggestion was put by the appellant to the said witness that he was tutored
by the respondent husband which was denied by him. Infact the appellant
had sent a letter dated 20th December, 1994 (Exhibit 28) stating therein that
he was supporting the respondent, as he wanted to grab the respondent's
property.
The respondent examined Mr. H to prove letters at Exhibit 27 (colly.)
dated 25th October, 1994 and 20th December, 1994 respectively which were
received by him from the appellant. He has stated in his examination-in-
chief that he was working in the company along with the respondent. He
has stated that he received a letter from the appellant at his residence,
pursuant to which he learnt about the strained relations between the two.
He has stated that one letter was addressed to him and the other letter was
He has stated that in the letter addressed to
addressed to the respondent.
him by the appellant, it was alleged that he wanted to grab the respondent's
workshop. He has stated that the said allegations were totally false. He has
further stated that the letter which was addressed to the respondent was
open and was attached to the letter sent to him and therefore he read the
said letter. He has stated that the language used in the said letter addressed
to the respondent was filthy and abusive and therefore, he handed over both
the letters to the respondent. In the cross-examination, it is pertinent to note
that the appellant has not disputed having sent the letters at Exhibit 27
(colly.). The only suggestion that was made to the said witness was that the
said letter was written to him only because he had accompanied the
respondent husband to one Advocate's office to seek advice, which he has
13.
denied.
The respondent also examined his daughter-in-law. She stated that
she was married to the appellant's son on 13th January, 2001 at Thane and
that it was an arranged marriage. The said witness has given details of post
2001 events with regard to her relationship with her husband, her mother-
in-law i.e. appellant, which were strained. She has stated that the appellant
would nag her and as a result of her interference, there used to be quarrels
between her and her husband.
She stated that her father-in-law i.e.
respondent lives at Bhandup in a slum area, in a chawl in a small room and
that she knew him for the last one and half year and that, he appears to be a
simple person. Her evidence, however is not relevant and therefore, we do
not wish to deal with her evidence, as she was married in 2001 and as such,
had no knowledge about the alleged acts of cruelty and desertion on which
the petition came to be filed by the respondent husband for divorce.
14.
The appellant wife examined herself. She has reiterated the contents
set out in the written statement, which are adverted to in detail in the earlier
It would be apposite to mention here that the
part of this Judgment.
clubbed with the respondent's petition.
appellant wife had also filed a petition for maintenance, which was also
The entire thrust of her
examination-in-chief is with regard to the gala and to the financial problems
faced by her after the separation.
She has alleged that the respondent
husband had left the house on 20th January, 1993 and 24th April, 1993 and
had gone to reside with his sister. She has alleged that the respondent was
residing at his sister's place. When she went there, she found that the
husband was at home and that after a lot of persuasion by the elder son,
respondent came home. She has stated that the respondent husband alleged
that she was indulging in prostitution and that she had tolerated the same
for the sake of marriage. She had further alleged that the respondent had
behaved abnormally and eccentrically. She has further alleged that her
elder son told her that the father i.e. respondent wanted him to keep a watch
on her and that he had promised to give his son money for the same. She
has stated that she was behaving well with the husband and was looking
after him, however it was the respondent who did not behave responsibly
towards the children and never took care of the children. She has stated
that she had taken up all the responsibilities of the children. She has further
stated that the management of 'Ramav Enterprises' was although being
looked after by the respondent, she was helping him in the business. She
has further alleged that the respondent after leaving the house in 1993,
would call up and use abusive language against her, as a result of which,
she had lodged complaints against him with the Bhandup/Mulund Police
She has produced the said police complaints (Exhibit 50 and
Exhibit 55).
She has further alleged that as the respondent husband
Station.
deserted her, the Committee members of the Society behaved badly with
her and she was not allowed to attend the society meetings. She has stated
that she was residing at the said residence at Mulund with her younger son,
his wife and their daughter.
15.
The appellant wife has produced a letter dated 8 th February, 1995
Deputy
Commissioner of Police,
being Exhibit 50, written to the
Bhandup wherein she has stated with regard to an incident which allegedly
took place at `Ramav Enterprises'. She has stated that the respondent
husband abused her at the work place and even assaulted her. She has
further alleged in the said letter, being Exhibit 50 that the respondent
husband was having illicit relations and as he wanted to avoid paying
maintenance to her, he left the house. She has further alleged that the
respondent husband at the behest of his brother and sister-in-law was
allegedly threatening to kill the appellant wife and the children.
16.
The entire thrust of the cross-examination by the respondent husband
is on the gala business and documents pertaining to the same. Suggestion
was made that she was receiving a sum of Rs.40 to 50 thousand per month
from the investment made by him from the sale proceeds of a gala at Thane
which was denied by her. The said witness has denied the suggestions
made by the respondent husband with regard to alleged acts of cruelty and
desertion. She has also denied the suggestion that she had filed a number of
false complaints against the respondent.
The appellant examined her son as her witness. He has stated that in
17.
1992 (when he was 20 years of age), he was forced by his father i.e.
respondent husband to leave the job and keep a watch on his mother i.e.
appellant wife, as she was a woman of bad character. He has stated that at
that time, his younger brother was taking education and was studying
Instrumentation Engineering. He has further alleged that his father i.e.
He has stated that at
respondent left the home without informing them.
the relevant time, he was 20 years of age. The said witness has done his
Masters Degree in Management and has stated that his mother was of good
character and that she had taken efforts to bring them up and had borne all
there educational expenses. He has stated that they had a tough and hard
life during those days and that it was difficult for them to make both ends
meet. He has further stated that his father (respondent) had neglected his
responsibility towards them and that he would abuse his mother in a filthy
language and would even assault her without any reason. He has further
alleged that the respondent had left home when his younger brother had
attained the age of 18, so as to avoid paying maintenance to them. In his
cross-examination, several suggestions were made on behalf of the
respondent, which were denied by him.
18.
The appellant wife has also examined a jeweller Mr. J in support of
her case to show that the appellant had come to sell her jewelery at this
shop. In his cross-examination, he has admitted that the purchase bills,
which have been marked as Exhibit 103, do not mention the amount given
to the appellant. Similarly, there is no signature of the appellant
same. He has stated that he does not know the appellant and that had come
to attend the said case pursuant to the Court Summons. The said witness
was unable to furnish the books of accounts on the ground that they were
spoilt. He has admitted that he does not recollect the exact date on which
the appellant had come for the said transaction.
He has denied the
suggestion that he knew the appellant for a long time and that he had come
19.
documents in Court.
to the Court only to falsely depose in her favour and to file bogus
The learned Judge of the Family Court after considering the evidence
on record by Judgment dated 1st March, 2005 granted decree of divorce on
the grounds of cruelty and desertion to the respondent husband. It is
pertinent to note, that the appellant has not challenged the dismissal of the
C-130 of 1995 which was for maintenance and therefore we confine
ourselves to the challenge in this Appeal i.e. grant of decree of divorce to
the respondent on the grounds of cruelty and desertion.
20.
We have heard Mr. A. G. Toraskar, learned counsel appearing for the
Appellant wife and Mr. S. G. Deshmukh, learned counsel appearing for the
21.
Respondent husband.
The learned counsel for the appellant wife has taken us through the
pleadings, notes of evidence and other documents and record. He urged
that the respondent husband had failed to establish either cruelty or
desertion by the appellant wife. He urged that to the contrary, it was the
respondent husband who treated the appellant wife with cruelty and it was
the respondent husband who deserted her and therefore he must be
precluded from taking advantage of his own wrong. It is pertinent to note
that the appellant wife admitted the documents at Exhibit – 27 i.e. letter
addressed to Mr. H along with a letter addressed to the respondent wherein
unfounded and unsubstantiated allegations with regard to illicit relations of
the respondent with his sister and sister-in-law were made. It was urged by
the learned counsel that the said letter i.e. Exhibit 27 was sent by the
appellant as a counter blast to the alleged acts of cruelty by the respondent
and the allegations made by him against the appellant.
urged that the Appeal be allowed.
22.
supported the impugned Judgment granting decree of divorce on the ground
of cruelty and desertion. He submitted that the appellant wife had made
life impossible for him by her alleged acts of cruelty which compelled the
respondent husband to leave the matrimonial house. It was contended by
the learned counsel for the respondent, that the letter dated 25th October,
1994 at Exhibit 27 addressed to the respondent through his friend Mr. H
was extremely vulgar, filthy and derogatory. It was contended that the
contents therein had caused the respondent tremendous mental trauma, pain
and agony, as the allegations were totally unfounded, unsubstantiated and
baseless. He urged that the learned Judge, Family Court has rightly
accepted the evidence with regard to cruelty and desertion and thus sought
dismissal of the Appeal.
We have given our anxious considerations to the evidence and
23.
material on record and more particularly documents at Exhibit 27 i.e. letters
dated 25th October, 1994 and 3rd November, 1994 written to Mr. H and the
respondent. According to us, the letter at Exhibit 27 dated 3 rd November,
1994 addressed to the respondent husband which was sent along with a
covering letter dated 25th October, 1994 to Mr. H, on the address of Mr. H is
a damning piece of evidence against the appellant wife. At the cost of
repetition, it is necessary to mention that the said letters at Exhibit – 27
have been admitted by the appellant wife and therefore the contents therein
can be read in evidence to decide whether the language in the said letter
would amount to cruelty as contemplated under section 13 (ia) of the said
Act. As has been stated earlier, the respondent has examined Mr. H to
We have perused the letters and considering the nature
and read by him.
prove the letters at Exhibit 27, sent to his residence and which were opened
of allegations and the vulgar and scandalous language used in the said letter,
we do not intend to reproduce the same. Suffice it to say, that the letters are
extremely vulgar, abusive, obscene and derogatory. By the said letter, the
appellant wife has made wild and baseless allegations against the
respondent husband that he was having illicit relations with his own sister
and sister-in-law. The said letter at Exhibit 27 has not been denied by the
appellant wife nor has she substantiated the allegations set out in the letter.
To the contrary, she has stated that the said letters were sent as a counter
blast to the ill-treatment suffered by her at the hands of the respondent and
that he had no reason to be shocked. In addition to the said letter at Exhibit
27, there is another letter dated 8 th February, 1995, addressed to the Deputy
Commissioner of Police, Bhandup Police Station, sent by the Appellant,
which is at Exhibit – 50. In the said letter, apart from stating that the
respondent had assaulted her, she has stated that the respondent had
prepared a master plan, 18 months ago, to kill her, so that there was no
impediment for continuing with the illicit relation.
Before we analyse the evidence of cruelty adduced by the respondent,
24.
it would be necessary to consider as to which acts constitute 'cruelty'. The
expression 'cruelty' have been used in relation to human conduct or human
behaviour. It is the conduct in relation to or in respect of matrimonial duties
'Cruelty' thus is a course or conduct of one, which
and obligations.
adversely affects the other. It may be mental or physical, intentional or
unintentional. It is a question of fact and degree. If it is physical, the Court
will have no problem in determining the same. However, if it is mental
cruelty, the enquiry must begin with the nature of cruel treatment and the
impact of such treatment in the mind of the spouse, whether it caused
reasonable apprehension that it would be harmful or injurious to live with
the other. Ofcourse ultimately, it is a matter of inference to be drawn by
taking into account the nature of conduct and its effect on the complaining
spouse. The conduct complained of must be “grave and weighty” so as to
come to a conclusion that the spouse cannot be reasonably expected to live
with the other spouse. It must be more serious than “ordinary wear and tear
of married life.” Mental cruelty must consist of verbal abuses and insults
by using filthy and abusive language leading to constant disturbances of
It would be apposite to refer to the decision, in the case of Naveen
where the Apex Court held that cruelty is a
Kohli v/s. Neelu Kohli
25.
mental peace of the other party.
course/conduct of one which adversely affects the other. The expression
cruelty as appearing in Section 13, clearly admits in its ambit and scope
such acts which even cause mental agony to the aggrieved party. Intention
to be cruel is not an essential element of cruelty as envisaged under section
13(1) (ia) of the Act. It is sufficient if the cruelty is of such a nature that it
becomes impossible for the spouses to live together. An inference can be
drawn from the attending facts and circumstances taken cumulatively. The
Apex Court, infact in the case of Vijaykumar Ramchandra Bhate vs.
Neeta Vijaykumar Bhate2 was
required to consider “whether the
1 2006 SCC 1675
2 AIR 2003 SC 2462
averments, accusations and character assassination of the wife by the
appellant husband in the written statement constitutes mental cruelty to
claim decree of divorce under section 13(1) (ia) of the Hindu Marriage
Act”. The Apex Court in paragraph 7 of the said Judgment has observed as
under:
“The question that requires to be answered first is as to whether
the averments, accusations and character assassination of the wife
by the appellant husband in the written statement constitutes
mental cruelty for sustaining the claim for divorce under Section
13(1)(i-a) of the Act. The position of law in this regard has come
to be well settled and declared that leveling disgusting
accusations of unchastity and indecent familiarity with a person
outside wedlock and allegations of extra marital relationship is a
grave assault on the character, honour, reputation, status as well
as the health of the wife. Such aspersions of perfidiousness
attributed to the wife, viewed in the context of an educated Indian
wife and judged by Indian conditions and standards would
amount to worst form of insult and cruelty, sufficient by itself to
substantiate cruelty in law, warranting the claim of the wife being
allowed. That such allegations made in the written statement or
suggested in the course of examination and by way of cross-
examination satisfy the requirement of law has also come to be
firmly laid down by this Court. On going through the relevant
portions of such allegations, we find that no exception could be
taken to the findings recorded by the Family Court as well as the
High Court. We find that they are of such quality, magnitude and
consequence as to cause mental pain, agony and suffering
amounting to the reformulated concept of cruelty in matrimonial
law causing profound and lasting disruption and driving the wife
to feel deeply hurt and reasonably apprehend that it would be
dangerous for her to live with a husband who was taunting her
like that and rendered the maintenance of matrimonial home
impossible.”
considering the fact, that the letters at Exhibit 27 have not been disputed by
the appellant wife, we are inclined to observe, that the allegations made
therein by the appellant wife would certainly constitute mental cruelty to
the respondent husband. The allegations made in the said letter written at
that any person against whom such wild, serious and
nature
Exhibit 27, are extremely serious, vulgar, filthy and wild and are of such a
unsubstantiated allegations are made, is bound to undergo mental pain,
agony and suffering. The allegations made in the said letter written to the
respondent clearly suggest that the husband was having illicit relations with
his own sister and sister-in-law. The vulgar and filthy language used therein
restrains us from reproducing the same in the Judgment. We are firmly of
the opinion that the said allegations and language used therein, would
constitute mental cruelty which is of such a nature that the respondent
husband cannot reasonably be expected to live with the appellant wife
thereafter. The position of law is well settled that levelling disgusting
accusations of extra-marital relationship amounts to grave assault on the
character, honour, reputation, status as well as the health of a person. Such
worst form of cruelty,
aspersions which are unsubstantiated constitute
sufficient by itself to constitute cruelty in law. The appellant wife has not
even made an attempt to substantiate the allegations made in Exhibit – 27.
27.
In addition to the letter at Exhibit 27, the evidence adduced by the
respondent husband clearly shows disaffection and refusal of the appellant
wife to cohabit with the respondent husband. The instances narrated by the
ig
respondent husband in his evidence is consistent and clearly shows that the
hostile attitude and persistent non cooperation of the appellant wife had
made life impossible for him, as a result of which he was constrained to
leave his own house and find an alternate accommodation. The appellant in
a letter (Exhibit 50) addressed to the Deputy Commissioner of Police,
Bhandup Police Station has devoted one entire paragraph to the allegations
regarding the illicit relations of the respondent and his plan to eliminate her
on account of the same. Both the spouses have alleged cruelty against the
other. However, respondent husband has sought divorce on the ground of
cruelty and desertion and the appellant wife curiously though has alleged
cruelty by the respondent has not claimed divorce or judicial separation. On
perusal of the evidence of the appellant wife and her witnesses, we find that
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31
fca.16.06.doc
the evidence does not inspire confidence, is bereft of details and is
inconsistent and contradictory with regard to the grounds of 'cruelty' and
'desertion' raised by the respondent. The appellant wife had also filed on
record the police complaints lodged by her at Exhibit 55. According to
her,
the
respondent
used to call her and abuse her. However, it is
relevant to note that there is not a whisper with regard to the said
allegations in the appellant's petition for maintenance. Ordinarily, mental
ig
cruelty, in our view, will not depend upon the numerical count of such
incidents or only on the continuous course of such conduct, but would
really go by the intensity, gravity and stigmatic impact it may have, when
meted out even once and the deleterious effect of it on the mental attitude of
a spouse. Considering the allegations and the incidents enumerated in
detail by the respondent husband in the evidence, in our opinion they would
cumulatively constitute 'cruelty' and which became fait accompli the day
the appellant sent the letters at Exhibit 27. In the present case, we are of
the opinion that the Family Court has rightly come to the conclusion that
SQ Pathan
the appellant husband is entitled to a decree of divorce under section 13(1)
(ia) of the said Act.
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32
Now coming to the second issue i.e. the ground of desertion under
28.
fca.16.06.doc
section 13(1) (ib) on which, the Family Court has granted the decree of
divorce.
29.
Once we have come to the conclusion, that the appellant wife made
it impossible for the respondent husband to live in the house, by her
conduct, it can be safely inferred that he was compelled to abandon the
30.
ig
house on account of the said conduct.
The Apex Court in the case of Adhyatma Bhattr Alwar v/s.
Adhyatma Bhattar Sri Devi
3
has dealt with the concept of desertion in
the context of matrimonial law.
It is observed that there is no
comprehensive definition of the term 'desertion' and that it was wide
enough to include willful neglect.
31.
In order to prove desertion it is necessary to prove two elements i)
the absence of consent and ii) the absence of conduct giving reasonable
cause to the spouse to leave the matrimonial home to form the necessary
3 AIR 2002 SCC 88
SQ Pathan
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fca.16.06.doc
intention. In Savitri Pandey vs Prem Chandra Pandey 4 the Apex Court
held that desertion under section 13(1) (ib) means intentional permanent
forsaking and abandonment of one spouse by the other without the other's
consent and without reasonable cause.
'Desertion' is not a single act
complete in itself, it is a continuous course of conduct to be determined in
the facts and circumstances of each case. The onus was on the respondent
to prove that he was not guilty of such conduct and that he was not taking
ig
advantage of his own wrong as contemplated under Section 23 of the said
Act. Inference of desertion has to be made on balance of probabilities. It is
held in the case of Laxman v/s. Meena AIR 1964 SC 40 that in cases of
desertion, the factum as well as the animus deserendi have to be proved.
The burden of proof was therefore on the respondent husband. The learned
Judge rightly came to the conclusion that in the present case the factum of
desertion is proved by the respondent husband and that the respondent
husband had left his own house because of the conduct of the appellant
wife. As stated above the respondent had proved the acts of cruelty by the
appellant wife and that it would not be possible for him to cohabit with her.
32.
The evidence on record clearly shows that the appellant wife with her
4 AIR 2002 SC 591
SQ Pathan
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34
fca.16.06.doc
conduct had made it impossible for the respondent husband to live in the
the house.
matrimonial home and as a result of which he was compelled to abandon
The learned Family Court has rightly come to the conclusion
that when the appellant was cross-examined on the point, she had initially
denied taking keys but had thereafter admitted that she had asked the
respondent husband to call prior to his arrival in the house. The said
admission clearly indicates that the respondent did not have the keys of the
ig
house and infact corroborated his statement that he could not enter the
house unless the respondent was in the house.
Considering the aforesaid, we are of the opinion that the decree of
33.
divorce also ought to have been confirmed under section 13(1) (ib) of the
said Act.
34.
It appears that the learned Judge, Family Court, Bandra, Mumbai has
granted Rs.1,000/- towards maintenance from the date of the order i.e. 1 st
March, 2005 under Section 25 of the said Act. Section 25 of the said Act
(relevant sub-sections) reads thus :-
25. (1)
Permanent
alimony
and
maintenance.-(1)
Any
court exercising jurisdiction under this Act may, at
SQ Pathan
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fca.16.06.doc
the time of passing any decree or at any time
subsequent thereto, on application made to it for
the purposes by either the wife or the husband, as
the case may be, order that the respondent shall
pay to the applicant for her or his maintenance and
support such gross sum or such monthly or
periodical sum for a term not exceeding the life of
the applicant as, having regard to the respondent's
own income and other property of the applicant,
the conduct of the parties and other circumstances
any
such
payment
ig
and
of the case, it may seem to the Court to be just,
may
be
necessary, by a charge on the
secured,
if
immoveable
(2)
property of the respondent.
If the court is satisfied that there is a change in the
circumstances of either party at any time after it
has made an order under sub- section (1), it may at
the instance of either party, vary, modify or rescind
any such order in such manner as the court may
deem just.
(3)
----- ---- -----
The learned Judge, rejected the appellant wife's application petition
being M.J. Petition No. C-130 of 1995, by the same Judgment dated 1 st
March, 2005 and the same has not been challenged by the appellant nor has
any other application for enhancement of maintenance been filed in this
Court. In view of Section 25 of the said Act, we confirm the said order
SQ Pathan
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directing the respondent husband to pay the amount of Rs.1,000/- towards
maintenance. However, we make it clear that the appellant is not precluded
from preferring an application for modification of the Order of
Maintenance under Section 25 of the said Act. We also make it clear that
we have not adjudicated on the appellants right to claim maintenance, as it
was not the subject matter of challenge before us.
Family Court Appeal No.16 of 2006 is dismissed and the
(i)
ig
Accordingly, we pass the following order :-
Judgment and Decree dated 1st March, 2005 passed by the
Family Court, Bandra, Mumbai is confirmed. The decree of
divorce is upheld.
(ii)
The respondent husband shall pay permanent alimony of
Rs.1,000/- per month, towards the maintenance as directed
by the Family Court, Bandra, Mumbai by the impugned
Judgment and Decree dated 1st March, 2005. However, the
appellant wife is at liberty to apply to the Family Court for
enhancement of the maintenance in accordance with sub-
section (2) of Section 25 of the said Act.
(REVATI MOHITE DERE, J.)
SQ Pathan
(A. S. OKA, J.)
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