Sunday 4 May 2014

Whether prosecution under S 498A of IPC which resulted into acquittal will amount to an act of cruelty?



As held by the Apex Court, whether a particular act will 
constitute cruelty or not will depend upon the facts and circumstances 
of each case.     Whether an order of acquittal in criminal prosecution 

lodged at the instance of the  spouse amounts to cruelty will depend 
upon the facts and circumstances of each case.     Whether the criminal 
Court has recorded a finding that the prosecution case was false is again 
not   a   clinching   factor.     Considering   the   evidence   on   record,   the 
Matrimonial  Court will have to decide whether the prosecution which 
resulted into acquittal will amount to an act of cruelty.    In a given case, 
depending upon the evidence on record, even if the acquittal is on the 

ground that the charge could not be substantiated and even if there is 
no finding recorded by the Criminal Court that the prosecution case was 
false, there can be a case of cruelty.   It depends on the manner in which 
the complaint is filed and prosecuted. 


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.71 OF 2006
Mr. M
Vs
Mrs. M

­­
CORAM  : A.S. OKA & S.C. GUPTE, JJ 
27TH NOVEMBER 2013
Citation;2014 (2) ALLMR750

By   this   Family   Court   Appeal,   the   Appellant   husband   has 
taken an exception to the judgment and decree dated 5 th  April 2006 
passed   by   the   learned   Judge   of   the   Family   Court,   Pune.     We   have 
blocked   the   names   of   the   parties   for   the   benefit   of   the   parties 
considering the rival allegations.
2.
The Appellant husband filed a Petition for seeking a decree 
of divorce  under  Clause (ia) of Sub­section  (1) of Section  13 of the 
Hindu Marriage Act, 1955.   The marriage was solemnized on 3 rd  July 

1998.   The divorce was sought on the ground of cruelty.   The ground 
of   cruelty   is   based   on   the   allegation   that   a   false   prosecution   was 
initiated at the instance of the Respondent against the Appellant and his 
family members for the offence punishable under Section 498­A of the 
Indian Penal Code.  In the Petition for divorce, the Appellant has set out 
various   details   and   has   alleged   that   the   manner   in   which   the 
prosecution was conducted caused enormous mental cruelty to him and 

to his family members.   It is pointed out that the prosecution resulted 
into the acquittal.   The Respondent wife denied the allegations by filing 
a   written   statement.         The   Appellant   examined   himself.       The 
Respondent   examined   herself.       The   Appellant   examined   two   other 
witnesses.     The Respondent also examined one witness. The learned 
Judge of the Family Court held that the Appellant failed to substantiate 
the allegations of cruelty. 
3.
The learned counsel appearing for the Appellant has taken 
us through the pleadings and the notes of evidence.     He pointed out 
the consistent conduct of the Respondent as reflected from the evidence 
on record.   He also invited our attention to the judgment and order of 
the   Criminal   Court   by   which   the   Appellant   and   his   family   members 
were acquitted in a case where allegations against the Appellant and his 
family   members   were   of   the   commission   of   the   offence   punishable 
under Section 498­A of the Indian Penal Code ( for short “IPC”).     He 

submitted that filing of such a false case against the Appellant and his 
family   members   and   the   manner   in   which   the   case   was   conducted 
caused mental cruelty to the husband.     He relied upon a decision of 
the Division Bench of this Court in the case of Nitin Ramesh Dhiwar v.  
Sou.   Roopali   Nitin   Dhiwar1.         He   also   relied   upon   an   unreported 
decision of this Court in the case of  Nagesh Dhanapp Chikanti v. Sau.  
Manisha   Nagesh   Chilkanti2.     He   relied   upon   a   decision   of   the   Apex 

Court in the case of V. Bhagat Vs. Mrs. D. Bhagat3. He pointed out that in 
the written statement, the wife has alleged that due to the mental and 
physical ill­treatment of the Appellant, she suffered from arthritis. He 
also pointed out that in the written statement, the wife has alleged that 
due to the ill treatment given  to her  by the Appellant and   his family 
members, her father suffered a shock and due to shock, he expired on 
22nd March 2003. The learned counsel urged that these unsubstantiated 
allegations  of  serious  nature  caused  mental  cruelty  to the  Appellant­
husband. 
4.              The learned counsel appearing for the Respondent submitted 
that mere acquittal in the prosecution under Section 498­A of the IPC 
by   itself   will   not   amount   to   cruelty.         Inviting   our   attention   to   the 
judgment   of   the   Criminal   Court,   he   urged   that   there   is   no   finding 
recorded   by   the   Criminal   Court   that   the   allegations   made   by   the 
1 2012(7) ALL MR 315
2 FCA No.158 of 2008 decided on 6th May 2010
3 AIR 1994 SC 710(1)

Respondent   wife   were   false.     He   submitted   that   the   only   finding 
recorded by the learned Magistrate  is that the prosecution could not 
establish   the   ingredients   of   the   offence   on   the   basis   of   evidence   on 
record.       He   submitted   that   no   other   allegation   of   cruelty   has   been 
substantiated.  The learned counsel appearing for the Respondent wife 
submitted  that even  if   this  Court is  inclined  to take  a  view  that  the 
allegations of cruelty are proved, this is a fit case to grant permanent 
“the said Act”).    

alimony under Section 25 of the Hindu Marriage Act, 1955 ( for short 
5.                 As far as the plea of the Respondent for grant of permanent 
alimony   under   Section   25   of   the   said   Act   is   concerned,   the   learned 
counsel for the Appellant  relied upon a decision of the Division Bench 
of this Court in the case of Smt. Sudha  Suhas Nandanvankar v. Suhas  
Ramrao Nandanvankar4.   He urged that when it is established that the 
wife   has   harassed   the   husband,   the   Court   must   decline   to   grant 
permanent alimony under Section 25 of the said Act.    He also relied 
upon a decision of the Apex Court on this aspect in the case of  Deb  
Narayan  Halder   v.  Smt.   Anushree  Halder5.     In  the   said  decision,  the 
Apex Court held that a wife who leaves matrimonial home without any 
justification  is  not entitled to  maintenance   under  Section  125 of  the 
Code of Criminal Procedure, 1973.
4
5
AIR 2005 Bombay 62
AIR 2003 SC 3174

We   have   given   careful   consideration   to   the   submissions. 
6.
5
We have perused the pleadings, notes of evidence as well as the record 
of the case.   It will be necessary to make a reference to the averments 
made in the Petition for divorce filed by the Appellant.    The affidavit 
in­lieu of examination­in­chief of the Appellant is virtually a replica of 
the Petition.  The marriage between the parties was solemnized on 3 rd 
ig
July 1998.     It appears from his pleadings and evidence that the first 
dispute   between   the   parties   was   during   the   Diwali   of   1998.       It   is 
alleged that contrary to the wishes of the  Appellant, the Respondent 
proceeded along with her brother to her parents' house at Solapur.    A 
reference is made to certain petty quarrels between the Appellant and 
the Respondent.
7.
It is alleged that in October 1998, the Respondent's father 
called   up   the   Appellant   in   his   office   and   abused   him   by   making 
allegation   against   him   that   he   is   not   properly   looking   after   the 
Respondent.     It   is   alleged   that   in   September/October   1998,   the 
Respondent   accompanied   by   her   father   and   his   cousins   Sudhir   and 
Pradeep visited the Appellant's office and fought with him.   It is alleged 
that   for   a   period   of   one   year,   the   Respondent   was   away   from   her 
matrimonial home and she returned to the matrimonial home in the 
second week of June 2000.     After she returned, there was a quarrel 

between the parents of the Appellant on one hand and the Respondent 
and   her   mother   on   the   other   hand.         On   22 nd  June   2000,   the 
Respondent   and   her   family   members   lodged   a   complaint   with   the 
Women's   Cell,   Commissioner   Office   at   Pune.       It   is   stated   that   the 
Respondent   was suffering  from   arthritis  and  therefore,  the  Appellant 
had   taken   the   Respondent   to   their   family   doctor.       Thereafter,   the 
Appellant took her to a specialist.     It is alleged that it is during this 

period,   a   complaint   was   lodged   by   the   Respondent   and   her   family 
8.
members by approaching women's cell.
The   next   important   incident   alleged   in   the   Petition   for 
divorce   is   of   8th  January   2001.     It   is   alleged   that   on   that   day,   the 
Respondent's father, her cousins Satish, Sudhir and Dilip    visited the 
appellant's house in the afternoon.   At that time, the Respondent was 
sleeping. Satish went in the room where she was sleeping and woke up 
the   Respondent.       It   is   alleged   that   the   Respondent   packed   the 
ornaments and other articles given to her in a suitcase and  she handed 
over the said suitcase to Satish who kept the same in his vehicle which 
was   parked   outside   the   house.       It   is   alleged   that   Dilip   uttered 
derogatory words to the Appellant's father describing him as a “beggar”. 
It is stated that the Respondent on that day left the matrimonial home 
with the bag and baggage and on the very day, she lodged a complaint 
at   Samarth   Police   Station   alleging   offence   punishable   under   Section 

498­A of the IPC against the Appellant, his parents, his brothers and his 
sister.    An order of acquittal was passed by the learned Magistrate on 
16th  September   2004.       Material   allegations   based   on   the   said 
prosecution are in Paragraphs 17, 18 and 22 of the affidavit in lieu of 
examination­in­chief, which read thus: 

“17. All the accused ( I and my entire family ) had 
appeared before the Ld. Judge and were granted 
bail on 29/3/2001.   Since then I and my family 
members   appeared   before   the   Ld.   Judge   on 
21/4,   25/5,   17/5,   13/6,   20/7,   10/8,   12/9, 
25/10, 20/12 in the year 2001.   Similarly I and 
my family members appeared before the Court, 
on   26/2,   30/3,   12/6,   2/7,   23/7,   16/8,   12/9, 
4/1C,   23/10,   21/11,   4/12   in   the   year   2002. 
Similarly   I   and   my   family   members   appeared 
before   the   Court,   on   3/1,   17/1,   11/2,   20/2, 
11/3,   21/3,   9/4,   24/4,   6/5,   19/5,   18/6,   3/7, 
16/7,   8/8/   4/9,   25/9/   17/10,   7/11,   21/11, 
1/12, 19/12 in the year 2002.   Similarly I and 
my family members appeared before the Court, 
on   8/1,   23/1,   11/2,   23/2,   11/3,   12/4,   27/4, 
25/5,   3/6,   10/6,   21/6,   28/6,   2/7,   3/7,   9/7, 
16/7, in the year 2004.
18.
The   Respondent,   who   was   the   complainant   in 
the   case,   remained   absent   on   numerous 
occasions and the matter was prolonged hence. 
My   family   members   and   I   had   to   seek   leave 
from our job and had to remain present in the 
Court.    My parents and  me  who  are   suffering 
from   health   problems   like   B.P   Eyesight 
.,
problem,   Piles   (Father)   also   had   to   remain 
present   and   sit   for   hours   together   waiting   for 
the Respondent to come or for the Honourable 
Judge   to   give   the   next   date.       All   this   has 
affected me mentally and physically.   I have not 
been able to concentrate on my work owing to 
the health problems of my parents and the court 
case.   My unmarried sister also had to come to 

the   court,   for   no   faults   of   hers.     My   brothers 
were   unnecessary   involved   in   this   trauma, 
which   they   too   had   to   undergo,   without   the 
remotest connection with this case.   I state that 
the entire ordeal which went on for 3 years, has 
caused   immense   mental   cruelty   upon   me. 
Further,   I  was  helpless  as  my  family  members 
also suffered because of this false case.   For no 
fault   of   my   family   members,   and   me   had   to 
undergo   the   immense   stress   of   fighting   out   a 
Court case.”
In   such   circumstances,   filling   of   a   false 
complaint,   the   trauma   of   facing   th   trial   and 
victory   of   right   over   wrong,   all   amount   to 
cruelty.   By acquittal of all the accused i.e. my 
family,   and   I   state   that   I   have   suffered 
irretrievable   loss   and   irreparable   damage   and 
have cruelty of the highest nature.”

22.
As   stated   earlier,   the   affidavit   in­lieu   of   examination­in­
9.
chief is a replica of a Petition for divorce.    The allegation is that filing 
of a  false  complaint and the  trauma of  facing the  trial amounted to 
cruelty.         It   is   alleged   that   the   Appellant   took   good   care   of   the 
Respondent but the Respondent inflicted cruelty upon the Appellant.  
10.
In her written statement, the Respondent contended that 
she became aware of the order of acquittal passed on 16 th  September 
2004 from the averments in the Petition for divorce.   With reference to 
the   allegation  that  the  Respondent  left  the   matrimonial   home  on  8 th 
January 2001, the  contention raised in the written statement is that in 
fact the Respondent was badly treated by the Appellant  and his family 

members and that she was driven out from her matrimonial home.     In 
Paragraph 17 of the written statement, various instances of ill­treatment 
given to the  Respondent have been set out.   It is stated that due to 
mental and physical ill­treatment by the Appellant and his relatives, the 
Respondent suffered from arthritis.    It is contended by the Respondent 
that the Appellant deserted the Respondent from 4 th June 1999 to 28th 
June 2000.   She stated that on 5 th  November 1999, her father filed a 

Petition before the President of their Community.   The Panchas of the 
Community had called upon the Appellant to attend meetings but he 
had refused to attend.   It is alleged that the Appellant and his family 
members   treated   her   with   cruelty.     Due   to   the   shock,   Respondent's 
father died on 22nd March 2003.
11.
As regards what transpired from 22 nd June 2000, in clauses 
(f) and (g) of Paragraph 17 of the written statement, the Respondent 
has stated thus:­
“(f)
On 22.6.2000 on the occasion of birthday of 
petition   the   respondent   tried   to   contact   him 
on phone but petitioner did not respond.   So 
on   24.6.2000   the   father   of   respondent   was 
compelled   to   give   complaint   applicant   to 
Mahila Police, Pune.    During enquiry of this 
complaint   application   the   petitioner   was 
called for at that time to avoid the police case 
the petitioner showed his willingness and gave 
a   guarantee   of   his   good   behavior   with 
respondent   and   as   such   he   took   the 
respondent   for   cohabitation   to   his   house   on 

28.6.2000.  The respondent was residing there 
till 8th Jan. 2001.   During this period also the 
behavior   of   the   petitioner   and   his   family 
members was not changed.     On the contrary 
there   was   grudged   in   the   mind   of   the 
petitioner   and   his   family   members   that   the 
respondent approached the police and so all of 
them were ill­treating her. 

On   7.1.2001   petitioner   picked   quarrel   on 
flimsy ground with respondent and he insisted 
the respondent to go out of house.       And in 
that   quarrel   he   expressed   that   she   should 
bring   money   from   her   father   for   Flat 
otherwise   she   is   of   no   use.       At   that   time 
brother of petitioner Vijay rushed towards the 
respondent for assaulting her.  That due to this 
incident   the  respondent   called   her   father   on 
phone.     When   the   father   and   brother   of 
respondent came to the house of petitioner at 
that   time   the   petitioner   and   his   family 
members insulted them and abused them and 
as such she was driven away from his house 
without any reason.     As such the petitioner 
has   deserted   her   since   Jan   2001,   That   the 
petitioner and his family members treated her 
with cruelty.     Dur to this shock the father of 
respondent expired on 22.3.2003.     The facts 
contrary   to   this   real   position,   mentioned   in 
petition of the petitioner are absolutely false 
and are denied by the respondent.”
(g)
That   the   Petitioner   was   not   allowing   the 
matrimonial   relations   as   husband   and   wife 
with the respondent without any reason.    As 
such the cruel behavior of the petitioner and 
his family members were continued.  
12.
From   the   pleadings,   it   appears  that   there  are   allegations 
and counter­allegations.    The stand of the Respondent is that from 4 th 
June 1999 till 28th June 2000, the Appellant deserted her.     It is stated 

that the Respondent returned to her parent's home on 4 th June 1999 for 
the purposes of attending the marriage of her brother which was to be 
solemnized on 29th June 1999.    Thereafter, the Appellant deserted her 
till 28th June 2000.   The Respondent claims that on 24 th June 2000, her 
father was compelled to file a complaint to Mahila Police Station, Pune, 
where   the   Appellant   was   called   who   showed   willingness   to   co­habit 
with the Respondent and accordingly on 28 th  June 2000, he resumed 

cohabitation   with   the   Respondent   which   continued   till   8 th  January 
2001.     Except for the bald statement that from 28 th  June 2000 to 8th 
January   2001,   the   Appellant   and   his   family   members   ill­treated   her, 
no   particulars   of   alleged   ill   treatment   have   been   set   out   except   for 
stating that, on 7th January 2001, the Appellant picked up quarrel with 
on flimsy ground.   It is alleged that the Appellant demanded money 
from   the   Respondent's   father   for   acquiring   a   flat.     There   are   two 
allegations of serious nature which are made in the written statement. 
The first is that due to mental and physical ill­treatment given by the 
Appellant to the Respondent and her relatives, the Respondent started 
suffering from arthritis since May 1999.   The second allegation is that 
the   Appellant   and   his   family   members   treated   the   Respondent   with 
cruelty and that due to shock, her father expired on 22 nd March 2003. 
The learned counsel appearing for the Appellant submitted that such 
allegations   of   serious   nature   have   remained   unsubstantiated,   which 
amount to causing mental cruelty to the Appellant.   

Therefore, it will be necessary to make a reference to the 
13.
12
deposition of the Respondent which is in the form of affidavit in lieu of 
examination­in­chief.       The   allegation   regarding   the   Respondent 
suffering from arthritis finds place in Paragraph 8 of the affidavit in lieu 
of examination­in­chief.   In Paragraph 10, it is alleged that her father 
died due to shock.  In Paragraph 17, the Respondent has stated that she 
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was ready and willing to cohabit with the Appellant even on the date of 
14.
filing of the affidavit in lieu of the examination­in­chief.   
It will be necessary to peruse the cross­examination of the 
Respondent.   In Paragraph 15, she has stated that she has not produced 
any document to show that because of the harassment by the Appellant, 
she suffered from arthritis.   She admitted that she had taken treatment 
from Dr. Bhagali, Dr. Salunke, Dr. Chopra, Dr. Jeurkar and Dr. Pai for 
arthritis.           In   Paragraphs   17   and   18,   the   Respondent   was   cross­
examined on the incident of 8 th January 2001.   Paragraphs 17 and 18 
of the deposition read thus:­
“17.
It is not correct to say that on 8/1/2001 after 
our  lunch my parents came  to the  house  of 
petitioner.   It is not correct to say that at that 
time   I   served   them   with   tea.         I   do   not 
remember at the time when they came to the 
house   of   petitioner.     But   they   might   have 
come   at   12.30   pm.       In   the   evening   of 
7.1.2001   I   gave   phone   call   to   my   parents, 

from   outside.     My   one   relation   Baddies 
staying at Karvenagar, Pune.     It is true that 
sister of wife of my brother is also staying at 
Pune.  My maternal uncle Katawe is staying is 
Gurwar Peth of Pune.     When I gave phone 
call to my father on 7/1/2001 I was neither 
happy nor weeping.   I did not tell my father 
on phone to start immediately. 
It is true that whenever my parents requested 
the   petitioner   for   visit   to   their   house   at 
Solapur, he told them that he could not as he 
had work in the office.  I cannot tell whether 
petitioner   is   hard   worker.       It   is   true   that 
sometime  he  worked full  week of 7 days in 
the office and sometimes duty on out station. 
It is true that his brother Vijay and Devendra 
and his sister Rajashree were also employed. 
It   is   not   correct   to   say   that   on   8/1/2001 
except   the   parents   of   the   petitioner   nobody 
from his family was present in the house.  It is 
true  that  on  that  day  the   petitioner  and  his 
sister   Rajashree   were   not   present   in   the 
house.” 

18.
15.
In the cross­examination, she admitted that her father had 
made an application to the President of her Community for requesting 
them to persuade the Appellant to resume cohabitation.    In Paragraph 
25 of her cross­examination, she stated that even in the criminal case, 
she expressed a desire for cohabitation.    She further stated that in the 
criminal case, the evidence of her father, uncle, cousins and two other 
witnesses   was   recorded.         She   admitted   that   she   deposed   in   the 
criminal case and the Court did not prevent her from adducing oral and 
documentary evidence.    She stated that the Public Prosecutor did not 
prevent   her   from   adducing   the   evidence.   Though   she   stated   that   an 

Appeal against acquittal was filed, she was not possessing the papers of 
that Appeal.     In Paragraph 30 of the cross­examination, she admitted 
that she never thought of filing a complaint against the Appellant till 
her father gave a complaint to Woman's Cell.   She stated that she had 
come   with   contact   of   P   Savita   Turekar.       She   stated   that   she 

complained to the said PI that the Appellant was not keeping sexual 
relationship with her.     She admitted that when she filed a complaint 

with the Police Station, her father and brother Satish were with her. 
She stated that she directly went to the Police Station from the house of 
the Appellant on 8th January 2001. 
At this stage, it will be necessary to make a reference to the 
16.
complaint filed by the Respondent's father with the Community.   The 
said   complaint   is   at   Exhibit­74.     In   the   said   complaint,   there   is   no 
allegation of cruelty  made against the Appellant.   It is alleged that the 
Appellant's mother and sisters have misguided the Appellant and have 
tried   to   instigate   him   to   fight   with   the   Respondent.           In   fact,   the 
allegation made in the said letter is that no efforts were made by the 
Appellant and his relatives to ensure that the cohabitation is resumed. 
Therefore,   a   request   was   made   by   him   to   the   President   of   the 
Community   to   make   efforts   for   reconciliation.         The   date   of   the 
complaint is 5th  November 1999.     From various documents on record 
which include the minutes of the meeting of Panchas of the Community 

it  appears  that    that till   30th  January  2000,  the   Respondent  and her 
father were attending the meetings of the Committee.    Minutes of the 
meeting held on 30th January 2000 are at Exhibit­86.   Even according 
to the case of the Respondent, on 28th June 2000, the parties resumed 
cohabitation.   
The certified copy of the deposition of the Respondent in 
17.

the criminal case is on record.     The attention of the Respondent was 
invited to the said deposition in her cross­examination before the Family 
Court. In the cross­examination, she admitted that the Appellant used 
to accompany her when she was taking treatment from Dr. Chopra for 
arthritis.
18.
Perusal of the judgment of the learned Magistrate which is 
at   Exhibit­41   shows   that   the   learned   Magistrate   has   taken   into 
consideration the evidence of the prosecution witnesses.    The learned 
Magistrate has recorded a finding that the ingredients of the offence 
have not been established.  
19.
Careful perusal of the evidence of the Respondent in the 
criminal case shows that no allegation of any acts of cruelty on the part 
of the Appellant's parents, his brother and sisters have been alleged for 
the period subsequent to 28th  June 2000 when the parties resumed to 
cohabitation.    An allegation is made that the Appellant demanded that 

the Respondent's father should give him a flat worth Rs.3,00,000/­  to 
Rs.4,00,000/­   or at least give him the said amount.       In her cross­
examination before the learned Magistrate, she admitted that she never 
made   any   complaint   about   the   demand   of   flat   or   money   by   the 
Appellant   till   December   2000.       In   the   written   statement   before   the 
Family   Court,   the   Respondent   has   not   stated   that   the   Appellant 
demanded a flat worth Rs.3,00,000/­ to Rs.4,00,000/­.     It is alleged 
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that he demanded money from her father for acquiring a flat.  Hence, 
this   allegation   regarding   the   demand   of   money   for   a   flat   is   not 
substantiated by the Respondent.
We   have   already   adverted   to   the   statements   made   in 
20.
Paragraph 17 of the deposition of the Appellant as to how the criminal 
case proceeded.   He has stated that he along with his family members 
appeared before the learned Magistrate on 9 dates in the year 2001, on 
10 dates in the year 2002, on 21 dates in the year 2003 and on 16 dates 
in the year 2004.     The trauma undergone by the Appellant and his 
family members have been set out in Paragraphs 17 and 18. On both 
the paragraphs, there is hardly any cross­examination.         Though the 
Respondent   came   out   with   a   case   that   she   has   preferred   an   appeal 
against the acquittal, she could not give any particulars and even could 
not produce a copy of the appeal preferred either by her or by the State 
Government.     

Thus, what can be concluded is that the Appellant could 
21.
17
not substantiate her allegation of cruelty against the Appellant and his 
family   members   in   the   criminal   prosecution.         The   case   made   out 
before the Family Court by the Respondent was that she was always 
interested in resuming cohabitation and she was willing to do so even 
when the cross­examination was being recorded in the criminal case. 
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As stated earlier, in the criminal case, the Respondent did not make any 
specific   allegation   against   the   accused   persons   except   the   Appellant. 
The allegation against the Appellant regarding the demand of flat and 
money   appears   to   be   an   afterthought.   Till   30 th  January   2000,   the 
Respondent and her father were attending meetings convened by the 
Community for the purposes of reconciliation. Thereafter, parties stayed 
together  only  from 28th  June  2000 to 8th  January  2001. Even before 
Family   Court,   the   Respondent   has   not   not   substantiated   her   case   as 
regards ill treatment by the Appellant during this brief period of about 
six months. We have already stated that for a period of four years the 
Appellant and his family members were forced to attend the Court of 
the learned Magistrate. The agony, trauma and humiliation undergone 
by   the   Appellant   and   his   family   members   due   to   the   criminal 
prosecution   has   been   narrated   by   the   Appellant.   The   version   of   the 
Appellant on this aspect will have to be accepted.

The specific allegation made in the written statement that 
the   Respondent   started   suffering   from   arthritis   due   to   ill­treatment 
given to her by the Appellant is not at all established.    The Respondent 
has   admitted   that   for   taking   treatment   for   arthritis,   she   consulted 
several doctors.     She did not examine any doctor to substantiate the 
said   allegation   regarding   the   cause   of   arthritis.       Even   the   other 
allegation in the written statement that her father died due to shock on 
ig
account   of   ill­treatment   given   to   the   Respondent   has   remained 
unsubstantiated.       These   are   very   serious   allegations   made   in   the 
written   statement.   From   8th  January   2001   ,   the   parties   admittedly 
resided separately.   It not even an allegation made by the Respondent 
that after 8th January 2001, there was any harassment by the Appellant. 
The   Respondent's   father   died   on   22 nd  March   2003.     Even   a   casual 
connection   between   the   alleged  acts  of  cruelty  and  the   death   of   the 
father has not been established. We have no hesitation in holding that 
the   both   the   defamatory   allegations   are   of   very   serious   nature.   The 
allegations could not be substantiated.  The said allegations are reckless 
allegations made by the Respondent wife.
23.
In the case of  Samar Ghosh v. Jaya Ghosh6, illustrations of 
mental cruelty have been set out in Paragraph 101, which reads thus:
“101. 
6
No uniform standard can ever be laid down 
for guidance, yet we deem it appropriate to 
enumerate   some   instances   of   human 
(2007)4 SCC 511

behaviour 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:
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) 

(i)  
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 
          behaviour   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.

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 
                    day­to­day   life   would   not   be   adequate   for 
                            grant   of   divorce   on   the   ground   of   mental 
                                   cruelty.
ig
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 behaviour 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   sterilisation   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.
(x) 
(vii)  
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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.”
In the case of  K. Srinivas Rao v. D.A. Deepa7  (2013)5 SCC 
24.

(xiii)  
226, in Paragraph 16, the Apex Court held thus:
“Thus, to the instances illustrative of mental cruelty 
noted in Samar Ghosh, we could add a few more. 
Making   unfounded   indecent   defamatory 
allegations   against   the   spouse   or   his   or   her 
relatives in the pleadings, filing of complaints or 
issuing   notices   or   news   items   which   may   have 
adverse impact on the  business prospect or the 
job   of   the   spouse   and   filing   repeated   false 
complaints   and   cases   in   the   court   against   the 
spouse would, in the facts of a case, amount to 
causing mental cruelty to the other spouse.”
                                             (emphasis added)
25.
In the case of Ravi Kumar v. Julmi Devi8, in Paragraphs 19 
and 20, the Apex Court held thus:
7
8
(2013)5 SCC 226
(2010)4 SCC 476

“19.  It   may   be   true   that   there   is   no   definition   of 
cruelty   under   the   said   Act.   Actually   such   a 
definition   is   not   possible.   In   matrimonial 
relationship,   cruelty   would   obviously   mean 
absence   of   mutual   respect   and   understanding 
between   the   spouses   which   embitters   the 
relationship and often leads to various outbursts 
of   behaviour   which   can   be   termed   as   cruelty. 
Sometime cruelty in a matrimonial relationship 
may take the form of violence, some time it may 
take a different form. At times, it may be just an 
attitude   or   an   approach.   Silence   in   some 
situations may amount to cruelty. 
Therefore,   cruelty   in   matrimonial,   behaviour 
defies any definition and its category can never 
be closed. Whether husband is cruel to his wife 
or   the   wife   is  cruel   to  her  husband  has  to  be 
ascertained and judged by taking into account 
the entire facts and circumstances of the given 
case   and   not   by   any   pre­determined   rigid 
formula. Cruelty in matrimonial cases can be 
of infinite variety ­ it may be subtle  or even 
brutal and may be by gestures and words. That 
possibly explains why Lord Denning in Sheldon 
v.  Sheldon  held   that   categories   of   cruelty   in 
matrimonial cases are never closed.”
                                    (emphasis added)

20.
The   learned   counsel   appearing   for   the   Appellant   relied   upon   an 
unreported   decision   of   this   Court   in   the   case   of  Nagesh   Dhanapp  
Chilkanti (supra).   In Paragraph 9, the Division Bench held thus:
“9. The   appellant   has   categorically   deposed   in 
examination in chief before the Family Court that by 
filing of false complaint for alleged commission of 
offence under Sec. 498­A of IPC the respondent  has 
falsely   prosecuted   the   appellant   and   his   family 
members.   The cross examination of the appellant 
indicate  that the  fact of acquittal of the appellant 
and his family members was never disputed and as 
such the Family Court ought to have proceeded to 

26.
accept   the   contention   of   the   appellant   that   false 
criminal cases were filed against the appellant and 
his   family   members   with   a   view   to   cause   utmost 
embarrassment, humiliation and sufferings.   Filing 
of false criminal cases against the appellant and his 
family members would very much constitute mental 
cruelty.”
Now coming back to the case in hand, the Respondent has 
not substantiated allegations of cruelty in her evidence.   She could not 
substantiate the allegations even in the criminal Court.   Only  witness 

examined by her is Mr.V who was a member of Nyaya Nivada Samiti of 
Shri Som Wanshiya Sahastrajur Kashatriya Samaj Seva Mandal in the 
year   1999.       He   deposed   regarding   the   application   made   by   the 
Respondent's   father   to   his   Community   which   is   at   Exhibit­74.       He 
deposed regarding the proceedings before the   Nyaya Nivada Samiti. 
He has stated that though various notices were sent by the Committee, 
there   was   no   response   from   the   Appellant.     Even   taking   the   said 
evidence as correct, the same does not help the Respondent to establish 
allegations of cruelty made by her. We have already noted earlier that in 
the   application   at   Exhibit   74,   there   was   no   allegation   against   the 
Appellant of cruelty and in fact, the request of the father was to make 
an effort to resume cohabitation.
27.
As held by the Apex Court, whether a particular act will 
constitute cruelty or not will depend upon the facts and circumstances 
of each case.     Whether an order of acquittal in criminal prosecution 

lodged at the instance of the  spouse amounts to cruelty will depend 
upon the facts and circumstances of each case.     Whether the criminal 
Court has recorded a finding that the prosecution case was false is again 
not   a   clinching   factor.     Considering   the   evidence   on   record,   the 
Matrimonial  Court will have to decide whether the prosecution which 
resulted into acquittal will amount to an act of cruelty.    In a given case, 
depending upon the evidence on record, even if the acquittal is on the 

ground that the charge could not be substantiated and even if there is 
no finding recorded by the Criminal Court that the prosecution case was 
false, there can be a case of cruelty.   It depends on the manner in which 
the complaint is filed and prosecuted. 
28.
Therefore, the scenario which emerges can be summarized 
thus: 
(a) 
the Appellant established that the Respondent could 
not   substantiate   the   allegations   of   cruelty   in   the 
criminal case.   Even the allegations of cruelty made 
by the  Respondent in  the  written  statement in the 
present case could not be established by her;  
(b)    The Appellant and his family members were required 
to attend Criminal Court on 56 different  dates from 
the year 2001 to 2004.   Considering the manner in 

which   the   criminal   case   proceeded,     the   Appellant 
and   his   family   members   were   subjected   to 
humiliation,   trauma   and   agony   as   set   out   in   the 
deposition of the Appellant;  
(c)   The   Respondent   made   a   very   serious   defamatory 
allegation against the Appellant, both in the written 

statement   and   in   her   evidence,   that   due   to   ill­
treatment   by   the   Appellant,   she   started   suffering 
from arthritis.   The Respondent made no efforts to 
substantiate   the   said   allegation.   Thus,   the 
(d) 
Respondent made unfounded defamatory allegation 
against the Appellant;  
The   Respondent   made   another   serious   allegation 
against the Appellant,both in the written statement 
and in her evidence, that due to harassment suffered 
by her from the Appellant, her father suffered shock 
which   lead   to     his   death.         Not   only   that   the 
Respondent did not substantiate  the said allegation, 
even   the   cause   of   death   of   her   father   was   not 
brought   on   record.     Even   this   allegation   is   an 
unfounded defamatory allegation; 

29.             We have no hesitation in holding that the aforesaid conduct 
amounts   to   mental   cruelty   to   the   Appellant   and   by   reason   of   such 
mental cruelty, he is not reasonably expected to continue cohabitation 
with the Respondent.
Now   turning   to   the   impugned   judgment,   we   find   from 
30.

Paragraph 16 thereof, the learned Judge seems to have proceeded on 
the footing that merely because there was an order of acquittal, it was 
not sufficient to draw an inference that the case is false. 
The   learned   Judge   of   the   Family   Court   has   not   at   all 
31.
appreciated the case in the right prospective and he seems to have over 
simplified the matter. 
32.
As  the   Respondent   has   failed   to  prove   the   allegations   of 
cruelty against the Appellant and she has failed to prove that it was the 
Appellant   who   had   deserted   the   Respondent,   the   bar   under   Section 
23(1) of the said Act will not apply in the present case. 
33.
Learned   counsel   appearing   for   the   Appellant   has   made 
submissions on the issue of grant of permanent alimony under Section 
25 of the said Act.     The learned Judge of the Family Court decided the 

case in the year 2006.   There is no evidence on record as regards the 
present income of the Appellant.  Under Section 25 of the said Act, the 
wife   can   seek   permanent   alimony   even   after   passing   of   a   decree   of 
divorce.   In this Appeal, it will be unjust to record a finding regarding 
entitlement   of   the   Respondent   to   receive   permanent   alimony.       We, 
therefore, propose to grant liberty to the Respondent to file a separate 
application   under   Section   25   of   the   said   Act   by   keeping   all     the 

contentions of the parties open.    It is obvious that the concerned Court 
will   have   to   take   into   consideration   the   findings   recorded   in   this 
judgment while deciding the application made by the Respondent. 
Accordingly,   the   Appeal   must   succeed   and   we   pass   the 
34.
following order:
(a)
ORDER : 
The impugned judgment and decree dated 5th  April 
2006 is quashed and set aside;
(b)
The marriage solemnized between the Appellant and 
the Respondent on 3rd July 1998 stands dissolved by 
a decree of divorce under Clause (ia) of Sub­section 
(1) of Section 13 of the Hindu Marriage Act, 1955;

To that extent, the Petition No.A­100 of 2005 stands 
allowed;
(d)
It   will   be   open   for   the   Respondent   to   make   an 
application to the appropriate Trial Court for grant of 
permanent alimony under Section 25 of the Hindu 
Marriage Act, 1955;   If such application is made, the 

same will be decided on its own merits in the light of 
The Appeal is allowed on above terms;
(e)
the observations made in this judgment ; 
 ( S.C. GUPTE, J )
There will be no order as to costs.
( A.S. OKA, J ) 
(f)

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