evidence are quite well settled. In a dispute between the husband and
wife, it is not possible to bring documentary evidence on record and,
very often, the case has to be decided on the word of the wife against
the word of the husband. A judicial trained mind, however, can very
well examine the facts and circumstances of the case and then draw its
own inference from the material on record. Most of the time acts of
cruelty take place in close room or bedroom of the couple where
neither the parents nor children are privy to what happens inside the
four walls of the bedroom. It is also quite well established that the
women in India normally do not like to bring the dispute between the
husband and wife in open and very often do not disclose to their
parents extreme cruelty at the hands of the husband because she feels
that if such a disclosure is made, it would make her parents unhappy.
The situation in India is therefore such that the husband plays a
dominating role in the house despite the fact that wife is educated,
working and belongs to affluent family.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.58 OF 2015
Suresh Bhandary
V/s
Mrs Sushma Bhandary
CORAM: V. M. KANADE &
MRS. SWAPNA S. JOSHI, JJ
DATE: 15th October, 2016
Citation: 2016 (6) ALLMR 850
1. The learned counsel for the Appellant has invited our
attention to a letter dated 9/10/2015 written by an advocate on
record in the Supreme Court, informing him that the Appellant is
taking urgent steps for filing an SLP against an order passed by this
Court dated 2/9/2016. In the said letter, it is therefore, requested that
an adjournment may be taken for hearing of the appeal. It is
submitted that Appellant may seek adjournment on this ground.
2. In our view, so far as order dated 2/9/2016 is concerned,
we had already granted leave to the wife to file an application seeking
enhancement of maintenance. We had made it clear to both the
parties that we do not propose to hear an application for enhancement
of maintenance, and that we would like to hear the main appeal first.
3. This is a peculiar case where the husband is not ready to
give divorce, though consent terms were filed and practically
Respondent/wife had almost agreed to all the terms and conditions,
which are imposed by the husband, because she had no other option
but to do so. The wife, therefore, did not claim custody of the son or
even access, since he is almost 16 years of age and very soon he will
attain 18 years of age, and he would be in a position to decide
whether he would like to meet his mother or not. Secondly, since wife
was seeking divorce on the ground of cruelty, she agreed to withdraw
all the allegations, which were made in the petition. The husband,
however, insisted that record should be clear. However, the husband
insisted that wife should make a statement that the allegations which
were made by her in the petition for divorce were false. She did not
accept this condition. Lastly, she had also agreed that she will not
claim past or future maintenance and that she will also not claim
share in the property, and the consent terms were exchanged. We had
suggested that both parties should withdraw allegations against each
other because if a statement is made by wife that the allegations,
which were made by her in the petition, were false that would create
a problem for her in future because the husband may again prosecute
her for making false allegations. We explained both the parties that
standard formula in such cases is that both parties should withdraw
the allegations made against each other. Thereafter again a new
contention was raised by the husband, and he insisted that wife should
make a statement that she does not have any claim in the husband's
property, and she would not create any right, title and interest in the
property of her husband or his family members. It needs to be pointed
out that the father of the wife is the maternal uncle of the husband,
which relationship is permitted under the Hindu Law, and there is a
custom of giving maternal uncle's daughter in marriage to the sister's
son in India. In this case, however, the Appellant and the Respondent
had love affair when the wife was just 18 years of age and the
husband, at that time, was 35 years of age. It is a matter of record
that wife's father is comparatively in much more better financial
position than the Respondent, as has been transpired during the
course of submissions, made by the parties. The husband's mother has
filed a suit against her brother claiming share in the property of her
father. In the said suit, allegations are made that signatures of his
mother are forged by the Respondent's father. We are informed that
the husband proposes to file a similar suit.
4. It appears that, therefore, husband is not keen to file the consent
terms. The parties, of course, cannot be forced to coaxed or
threatened to enter into the consent terms and they have to do so only
at their own volition. It is duty of this Court to pursue the parties to
sit together and find out an amicable solution. If the solution cannot
be arrived at, the Court has no other option but to hear the matter on
merits. Since we have made it clear that the application for
maintenance will be heard later on, we do not find any reason to
adjourn hearing of the family court appeal. Hence, request for
adjournment is refused.
5. Both these appeals can be conveniently disposed of by this
common judgment.
6. Heard the learned Counsel appearing on behalf of the
Appellant/husband and the learned Counsel appearing on behalf of
the Respondent/wife.
7. Appellant/husband has filed two appeals. The first appeal is
filed against the common judgment and order passed by the Family
Court dated 28/11/2014 whereby Divorce Petition filed by
Respondent/wife was allowed and divorce was granted to her on the
ground of cruelty under section 13(1)(ia) of the Hindu Marriage Act,
1955. Appellant/husband had filed a Petition under section 9 of the
said Act for restitution of conjugal rights which was also dismissed by
the said common judgment and order passed by the Family Court.
The second appeal is therefore filed by the Appellant challenging the
same common judgment and order.
8. Both the learned Counsel made lot of attempts to settle the
dispute. However, despite several attempts being made, for one
reason or the other, the Appellant/husband backed out from the
Consent Terms. We found that on number of occasions, on one
pretext or the other, Consent Terms could not be filed. Initially,
Appellant/husband made a suggestion that the Respondent/wife
should admit in the Consent Terms that she had made false allegations
against the husband. This obviously was not accepted by the wife
since, according to her, the said allegations were not false be she was
withdrawing the allegations so that decree by consent under section
13B of the said Act could be passed. Thereafter, husband raised an
objection that the wife should also make a statement that she would
not claim any past, present or future maintenance or interest in the
husband's property or his family members' property. The wife was
ready to make statement that she would not claim any past, present or
future maintenance or any claim or interest in the business of the
husband. However, now the Appellant/husband wants to extend the
scope and include even his family members. Appellant's mother has
also filed a suit claiming share in the wife's father's property and it has
also been alleged that the wife had forged signature of the Appellant's
mother.
9. Despite several efforts being made, parties were not ready to file
Consent Terms. Respondent/wife felt that she had not claimed
maintenance only on the condition that husband was ready to give her
divorce by mutual consent and since the husband was not giving her
divorce by mutual consent, she again filed an application seeking
maintenance.
10. We felt that since the parties cannot be compelled to settle the
matter, it would be appropriate to dispose of these appeals and
accordingly, today, we have heard the learned Counsel appearing on
behalf of the Appellant/husband and the learned Counsel appearing
on behalf of the Respondent/wife at great length.
11. The learned Counsel appearing on behalf of the
Appellant/husband has not only taken us through the pleadings viz.
Petition, Written Statement but also through the ExaminationinChief
of the wife, husband and crossexamination of the wife by the
husband's advocate. We find that the wife was crossexamined at
length for almost eight full days. Most of the crossexamination is in
the nature of suggestions.
12. The learned Counsel for the Appellant/husband then went
through the written submissions which he has submitted. We
permitted him to go through the written submissions. It is submitted
that no case of cruelty has been made out by the wife. Secondly, it is
submitted that there is no material on record to show that wife was
actually beaten up by the Appellant/husband. Thirdly, it is submitted
that the Respondent/wife has not produced any medical evidence or
record in support of her case that she was assaulted. It is then
submitted that photograph which has been produced is fabricated
photograph. It is then contended that in the crossexamination, the
wife has admitted that she had withdrawn the complaint which was
filed by her in 2011 and which is at Exhibit41. He submitted that
therefore statement of the witness could not be relied upon. He
submitted that on the other hand the Appellant/husband has
established that the Respondent/wife had abandoned the child and
she was negligent in performing her duties and husband was never
financially dependent on her father. He submitted that there were
statements made in the Petition that the Appellant/husband was
having a good income. He therefore submitted that all these
admissions falsify the case of the Respondent/wife. He submitted that
the learned Family Court Judge has not considered all these
admissions and has not considered the material on record in its proper
perspective.
13. On the other hand, the learned Counsel appearing on behalf of
the Respondent/wife has submitted that the Appellant/husband had
made the life of the Respondent/wife miserable to the extent that she
had no other option but to leave the house to protect herself. She
submitted that the the Appellant was subjected to mental and physical
cruelty by the husband and was literally treated as his slave. She
submitted that there was no reason to disbelieve the said testimony of
the wife regarding continuous abuse and assault by the husband and
his mother. She then submitted that apart from establishing the
ground of cruelty on account of treatment meted out to the wife, there
was another ground on which the Respondent was entitled to get
divorce. She submitted that it is a well settled position in law that if
allegations are made in the pleadings by the husband which are not
true and proved to be false then such allegations also amount to an act
of cruelty. She invited our attention to the Written Statement filed by
the husband. She submitted that number of false allegations have
been levelled against the wife. Firstly, it was alleged that she was a
woman of loose character. Secondly, it was alleged that she was
mentally unsound. Thirdly, it was alleged that she used to come to
house at late hours in the night. She submitted that all these
averments in the Written Statement are instances of derogatory
statements and allegations made against the wife. She submitted that
therefore these allegations itself amounted to cruelty. She submitted
that similarly in the Petition filed by the Appellant/husband for
restitution of conjugal rights under section 9, similar allegations were
made against the wife. In support of the said submission, she has
relied on the Judgment of this Court in Mrs. Manisha Sandeep Gade vs.
Sandeep Vinayak Gade1
. She relied on paras 3, 4, 6 and 16 of the said
judgment. She has then invited our attention to the Judgment of the
Apex Court in Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar
Bhate2
. She relied on paras 1, 7 and 11 of the said judgment. She has
then relied on the judgment of the Apex Court in V. Bhagat vs. Mrs. D.
Bhagat3
. She invited our attention to paras 7, 10, 11, 17 and 20 of the
said judgment.
14. On the other hand, the learned Counsel appearing on behalf of
the Appellant also placed reliance on number of Judgments. He has
relied on the Judgment in Sumathi vs. Palanichamy4
. He has also
relied on the judgment of the Apex Court in Savitri Pandey vs. Prem
Chandra Pandey5
. He then invited our attention to the Judgment of the
1 AIR 2005 Bombay 180
2 AIR 2003 SC 2462
3 AIR 1994 SC 710
4 I (2009) DMC 375
5 (2002) 2 SCC 73
Division Bench of this Court in Hemali Bindesh Kelaiya vs. Bindesh
Jayantial Kelaiya1
. He has also relied upon the judgment of the Apex
Court in Dr. N.G. Dastane vs. Mrs. S. Dastane2
He submitted that the
Apex Court in Dr. N.G. Dastane (supra) has clearly held that the acts
which have been condoned cannot be reagitated and cited as
circumstances of cruelty. He submitted that the wife had filed a
complaint against the husband in 2011 and which is at Exhibit41 and
she having later on withdrawn the same, it could not be relied on as
an instance of cruelty. He submitted that Apex Court has held that
common wear and tear in family life cannot be considered as a ground
of cruelty.
15. After having heard both the parties at length, we are of the view
that there is sufficient material on record to establish that the
Appellant/husband has continuously treated the wife with physical
and mental cruelty. His conduct can also be seen from the
circumstances which are narrated in the evidence of the wife. We are
therefore of the view that the Respondent/wife has established that
the Appellant/husband has treated the wife with cruelty within the
meaning of section 13(1)(ia) of the said Act and therefore she is
entitled to get decree of divorce on that ground alone. We concur
with the finding which is given by the learned Family Court Judge in
her Judgment wherein she has held that Respondent/wife has
established her case of cruelty.
1 I (2014) DMC 243 DB (BOM)
2 AIR 1975 SC 1534
16. It has to be borne in mind that the principles of appreciation of
evidence are quite well settled. In a dispute between the husband and
wife, it is not possible to bring documentary evidence on record and,
very often, the case has to be decided on the word of the wife against
the word of the husband. A judicial trained mind, however, can very
well examine the facts and circumstances of the case and then draw its
own inference from the material on record. Most of the time acts of
cruelty take place in close room or bedroom of the couple where
neither the parents nor children are privy to what happens inside the
four walls of the bedroom. It is also quite well established that the
women in India normally do not like to bring the dispute between the
husband and wife in open and very often do not disclose to their
parents extreme cruelty at the hands of the husband because she feels
that if such a disclosure is made, it would make her parents unhappy.
The situation in India is therefore such that the husband plays a
dominating role in the house despite the fact that wife is educated,
working and belongs to affluent family.
17. In the present case, the facts are quite interesting. The wife is a
cousin of the husband. Wife's father is the maternal uncle (Mama) of
the Appellant/husband and such marriages are permitted in India
according to Hindu Law and it has also been the tradition and custom
in Southern part of India. It is common ground that the husband and
wife belonged to Shetty Community which is mainly in the hotel
business. It is also common ground that wife and the husband fell in
love and at the relevant time the wife was 18 years old and the
husband was 35 years old. There was a big difference of age between
both of them. We have no reason to disbelieve her version of regular
assault by the husband, though it has been strenuously urged that
instead of going to medical clinic, the wife went to photo studio to
create the fabricated record. We do not accept this submission. If the
wife is interested in maintaining good relations with the husband and
his family members, she would conceal several cases of assault by the
husband rather than choose to go to Police Station and lodge a
complaint. It is a matter of record that, initially, in 2003, she had left
the house and gone back to her father. However, after she was
persuaded by the husband, she returned to the matrimonial house.
Second time however she left in the year 2006 when things became
intolerable, even leaving her only son with the husband.
18. The consistent evidence given by the wife therefore echoes her
trauma which she had suffered continuously at the hands of the
husband. The contention of the Appellant/husband that because she
has not produced medical certificate, her evidence should be discarded
cannot be accepted. We are therefore of the view that the
Respondent/wife has established that husband had treated her with
physical and mental cruelty by constantly assaulting her and by
mentally torturing her.
19. The second ground which has been taken in the Petition is that
the Appellant/husband was demanding money from the wife's father.
Both the parties have led evidence on this point. There is no material
on record to establish that such demand was made. Moreover, in the
later part of her testimony, the Respondent/wife at one stage had
stated that the husband's hotel known as Curi Club was doing very
well. We are therefore not satisfied that the said ground which has
been taken by the Respondent/wife can be said to be established and
for want of further material on record we are of the view that the said
ground is not established.
20. Thirdly, however, from the perusal of the Written Statement
filed by the husband and also from the averments made by him in the
Petition for restitution of conjugal rights, it is evident that the husband
had tried to tarnish the image of Respondent/wife in various ways and
from the material on record we do not find that he has established all
these allegations which are made by him in the Written Statement as
well as in the Petition under section 9.
21. It is quite well settled that definition of cruelty now has been
held to include all unwanted allegations made by the husband against
wife. The Apex Court in Mrs. Manisha Sandeep Gade vs. Sandeep
Vinayak Gade1
has observed in paras 3, 4, 6 and 16 as under:
1 AIR 2005 Bombay 180
“3. The respondent husband raised various grounds to
substantiate his case for cruelty. As enumerated by the
learned Family Court Judge, there were in all six instances
of cruelty, they being as follows:
(i) Refusal to do domestic work.
(ii) Insulting and abusing.
(iii) Insisting on having a separate residence.
(iv) To visit the matrimonial home and not to return on a
number of days every week.
(v) Threatening and terrorising the husband and his
parents.
(vi) Not disclosing that she had some gynecological
problem prior to marriage and concealing her
miscarriage which took place sometime in December
1998.
The appellant wife denied these allegations, but over and
above the denials, she made certain allegations of her own in
para 5(K) and (L) of the written statement. In para 5(K), she
mainly made three allegations; (i) the respondent behaved
with her perversely and harassed her sexually; (ii) he would
indulge in obscene talks with his girl friends on phone and in
person and would behave immodestly with the girl friends to
torture the appellant, (iii) he had illicit relationship with one
Leena, wife of Vivek, and in fact he wanted to marry her. In
para 5(L), she made allegations against her father in law that
his behaviour with her was improper and in that she alleged
that (i) he would touch her unnecessarily and (ii) he would
barge into the kitchen if she was changing her clothes.”
“4. The respondent examined himself and then led the
evidence of a few supporting witnesses, including his mother.
The appellant examined herself and a few supporting
witnesses. The examination-in-chief was by way of filing
affidavits on the basis of which the cross-examination was
conducted. After recording this evidence, the learned Judge
came to the conclusion that the appellant had failed to
establish the six specific instances of cruelty. He, however,
took the view that the allegations made by the appellant in
her written statement were baseless and amounted to cruelty.
The learned Judge noted that with respect to the allegations
about relationship between the respondent and Leena, except
the bare words in the affidavit of appellant, there is no other
evidence on record. He commented that it was her duty to
examine Vivek. Similarly with respect to the allegations
against the father of the respondent, the learned Judge noted
that the allegations were vague and she should have given
some details about the same. He, therefore, allowed the
petition filed by the respondent husband on the ground of
cruelty and granted the decree of divorce. Sine he was
granting the decree of divorce, he examined the question as
to whether the appellant wife was entitled to permanent
alimony under Section 25 of the Hindu Marriage Act. Having
however noted that the income of the appellant wife was
more, he held that she was not entitled to permanent
alimony.”
“6. It is material to note that whereas the wife has filed FCA
No. 49 of 2004 to challenge the order of divorce which is
granted in view of her baseless allegations, the respondent
husband has not filed any cross objection to the extent the
learned Family Court held that the six instances of cruelty
claimed by him were not established. Therefore, the question
as to whether those items specifically pleaded by the
respondent husband constituted cruelty or not no longer
survives. The respondent husband not having challenged the
finding on those six items, it will have to be held that he has
accepted that he has failed to establish the allegations of
cruelty on those grounds. We may as well add that the
counsel for the respondent also did not press any of those
instances in argument.”
“16. Analysis of the above referred two judgments of the
Apex Court makes it clear that where serious allegations are
made in pleadings, the consequent irretrievable break down
of the marriage (though not a ground by itself) will be a very
important circumstance to be considered while deciding
whether divorce should be granted or not. Once such serious
allegations are made, it becomes clear that there is no
chance of parties coming together or living together again.
As observed in para 22 of judgment in V. Bhagat v. Mrs. D.
Bhagat (supra), making of the allegations and yet opposing
divorce would mean a resolve to live in agony only to make
the life miserable for both the parties. Para 23 records a
clarification that there must be some extraordinary feature to
warrant the grant of divorce on the basis of pleadings and
other admitted material without a full trial. While scrutinising
the evidence, the said circumstance indicating an
irretrievable break down of marriage can be borne in mind to
determine whether the ground alleged is made out. In
Chanderkala Trivedi's case (supra) also, it is held that once
serious allegations are made in the pleadings of husband and
wife, it is obvious that the marriage between the parties is
dead and continuing the litigation further is nothing but an
exercise in futility and continuing the agony.”
The Apex Court in Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar
Bhate1 has observed in paras 1, 7 and 11 as under:
“1. The above appeals have been filed by the husband, who
lost before both the courts, challenging the orders granting
dissolution of the marriage solemnized between parties on
10th June, 1973 at the instance of the respondent wife and
dismissing the petition filed by the appellant seeking for the
relief of restitution of conjugal rights and custody of the two
daughters. The wife filed M.J. Petition No. 832 of 1983
under Section 13(1)(1a) of the Hindu Marriage Act, 1955,
seeking for dissolution of the marriage and grant of divorce
on the ground of cruelty said to have been meted out to the
wife. In support of her claim, the wife narrated several
instances of harassment and nagging attitude, which caused
her mental agony and serious set back in health. These were
ultimately considered and viewed by the learned Family
Court Judge to be mere normal wear and tear of marital life.
But at the same time, the allegations made by the husband,
1 AIR 2003 SC 2462
extensively with enumeration of instances and incidents
against wife branding her as an unchaste woman, keeping
illicit relations sexually and otherwise with one Ramesh
Sawant, the son of a neighbour, though subsequently
withdrawn by seeking an amendment of the written
statement, weighed with the court to uphold the claim of
the wife for divorce. The manner of narration and claims of
such allegations in the written statement was also
considered to be per se indicative of the fact that he made
such allegations against her not only when they were living
together but also to her relatives, friends and persons whom
he had contacted for reconciliation. The learned trial judge
was also of the view that notwithstanding the withdrawal, in
a reply filed on 17.1.90 also, those allegations were
considered to have been substantially reiterated by the
husband. Consequently, the Family Court allowed M.J.
Petition No. 382 of 1983 on 7.4.1994. As a sequel to the
same, the application in M.J. Petition No. 66 of 1988 filed
by the husband for restitution of conjugal rights and custody
of the daughters tried simultaneously with the other petition
came to be rejected by a separate order on that very date of
judgment granting dissolution of marriage between parties.”
“7. 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)(1a) 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.”
“11. That apart, in our view, even the fact that the
application for amendment seeking for deletion of the
accusations made in the written statement was ordered and
amendments carried out subsequently does not absolve the
husband in this case, from being held liable for having
treated the wife with cruelty by making earlier such
injurious reproaches and statements, due to their impact
when made and continued to remain on record. To satisfy
the requirement of Clause (ia) of Subsection (1) of Section
13 of the Act, it is not as though the cruel treatment for any
particular duration or period has been statutorily stipulated
to be necessary. As to what constitute the required mental
cruelty for purposes of the said provision, in our view, will
not depend upon the numerical count of such incidents or
only on the continuous course of such conduct, but really go
by the intensity, gravity and stigmatic impact of it when
meted out even once and the deleterious effect of it on the
mental attitude, necessary for maintaining a conducive
matrimonial home. If the taunts, complaints and reproaches
are of ordinary nature only, the Courts perhaps need
consider the further question as to whether their
continuance or persistence over a period time render, what
normally would, otherwise, not be a so serious an act to be
so injurious and painful as to make the spouse charged with
them genuinely and reasonably conclude that the
maintenance of matrimonial home is not possible any
longer. A conscious and deliberate statement leveled with
pungency and that to placed on record, through the written
statement, cannot so lightly be ignored or brushed aside, to
be of no consequence merely because it came to be removed
from the record only. The allegations leveled and the
incidents enumerated in the case on hand, apart from they
being per se cruel in nature, on their own also constitute an
admission of the fact that for quite some time past the
husband had been persistently indulging in them, unrelated
and unmindful of its impact. That the husband in this case
has treated the wife with intense cruelty is a fact, which
became a fait accompli the day they were made in the
written statement. They continued on record at any rate till
5.10.1988 and the indelible impact and scar it initially
should have created, cannot be said to have got ipso facto
dissolved, with the amendments ordered. Therefore, no
exception could be taken to the courts below placing
reliance on the said conduct of the appellant, in this regard,
to record a finding against him.”
Similarly, the Apex Court in V. Bhagat vs. Mrs. D. Bhagat1
has observed
in paras 7, 10, 11, 17 and 20 as under:
“7. In this application (I.A. No. 1 of 1993), this Court
directed on May 3, 1993, both the parties to be present in
person in the Court with a view to explore the possibility of
a settlement. On the next date, i.e., May 7,1993, the
1 AIR 1994 SC 710
respondent was not present. The matter was adjourned to
July 19,1993. On July 19, 1993, the parties were heard for
some time and the Court suggested to the parties to find a
viamedia to settle the matter. The parties sought for a
adjournment. The matter was adjourned to August 6, 1993.
On 6th August, the matter was again adjourned to 16th
August on which date we were told that the parties could
not arrive at any settlement, whereupon the arguments of
the counsel for the parties were heard. In the background of
the orders of this Court made in this I.A., referred to above,
learned Counsel for the petitioner reiterated his plea to
grant a divorce on the ground of cruelty evidenced by the
averments in her counter and the questions put to him in
the crossexamination. Counsel submitted that the marriage
between the parties has broken down irretrievably. Having
regard to the nature of allegations and counter allegations
made by the parties against each other, there is hardly any
room for their coming together. The petitioner has been
trying to obtain divorce right from the year 1980. For five
years he tried to get it by consent, failing which he
approached the Court. Eight years have passed by and
inspite of the repeated order of this Court, even the trial is
not yet over. The petitioner is now 55 years old. A good
part of the life of both the parties has been spent in rancour
and litigation. De hors the allegations of adultery originally
made in the petition for divorce, the petitioner is entitled to
divorce on the basis of the additional ground put in by way
of amendment viz., cruelty mental cruelty by wife. The
averments made in her counter and the question put by her
counsel in the crossexamination of the petitioner do
constitute clear acts of cruelty. In view of the said
averments/questions, no further material is necessary to
establish the said additional ground. In her written
statement, the respondent has alleged that the petitioner is
"suffering from mental hallucination" that his is a "morbid
mind for which he needs expert psychiatric treatment" and
further that "the petitioner is suffering from paranoid
disorder. He needs expert psychological treatment.... He is
in coherent in his thinking....The Petitioner is a mental
patient. The petitioner needs treatment by a psychiatrist to
whom he was directed by his own sister....He is a patient
and needs treatment and restoration of normal mental
health....The petitioner needs psychological treatment to
make him act a normal person" and so on and so forth. In
the crossexamination of the petitioner, the Senior Advocate
appearing for the respondentwife put several questions
suggesting that the petitioner and the several members of
his family including his grandfather are lunatics and that a
streak of insanity is running in the entire family. When he
protested against the said questions, the leaned Senior
Advocate made the following statement in the Court "all of
your (petitioner's) family including your grandfather and
other are lunatics with streaks of insanity running in the
entire family; this is the respondent's case; and that is why
these questions have been asked. " The said questions were
put and the said statement was made by her Advocate at
the instructions of the respondent. Notwithstanding the
dismissal of a similar application by the Delhi High Court
and the dismissal of a special leave petition there against by
this Court, this is a fit and proper case and this is the most
appropriate stage at which the petitioner should be
granted divorce on the ground of cruelty. The situation has
become intolerable, says the counsel.”
“10. That this is a rather unusual case can hardly be
disputed. The divorce petition has been pending for more
than 8 years. With a view to expedite its disposal it was
transferred from the District Counter to the High Court.
This Court repeatedly requested (in 1987 and 1991) the
High Court to try the matter on a daytoday basis and
dispose it of expeditiously. The petition is still at the stage
of trial. It is not possible for us to apportion the blame. Each
side attributes it to the other. Five learned Judges of the
High Court have tried their hand at the case, but it still
remains at the stage of trial. The crossexamination of the
petitioner alone took one full year. The crossexamination
of the respondent is yet to begin. Having regard to the
number of allegations made by the petitioner in his divorce
petition and the material relied upon by him, it may safely
be presumed that the crossexamination of the Respondent
would take as much time as the crossexamination of the
petitioner, if not more. Each party, it appears, is out to
punish the other for what the other is supposed to have said
or done. This appears to be the single thought ruling their
lives today. A good part of the life of both the parties is
consumed in this litigation and yet the end is not in sight.
The assertion of the wife that she wants to live with the
husband even now, appears to be but a mere assertion.
After all the allegations made against her in the petition and
the allegations levelled by her against the petitioner, living
together is out of question. Rapprochement is not in the
realm of possibility. For the parties to come together, they
must be super humans, which they are not. The parties have
crossed the point of no return long ago. The nature of the
allegations levelled against each other shows the intense
hatred and animosity each bears towards the other. The
marriage is over except in name. The desirability of
allowing the continuation of the divorce proceedings in the
particular facts and circumstances of this case, is open to
grave doubt. The matter may take more than a year at the
minimum to conclude in the High Court and then there is
the right of appeal to the losing party. Both the parties are
wellsettled. The children are grownup and are on their
own.”
“11. The question, however, is whether the allegations
made by the respondentwife do constitute mental cruelty.
The allegations in her written statement and her counsel's
explanatory statement in Court have already been set out
hereinabove. The respondent has asserted in her written
statement that she "has every right to make correct
statement of facts to defend herself against the wanton,
imaginary and irresponsible allegations".
“17. Mental cruelty in Section 13(1)(1a) can broadly be
defined as that conduct which inflicts upon the other party
such mental pain and suffering as would make it not
possible for that party to live with the other. In other words,
mental cruelty must be of such a nature that the parties
cannot reasonably be expected to live together. The
situation must be such that the wronged party cannot
reasonably be asked to put up with such conduct and
continue to live with the other party. It is not necessary to
prove that the mental cruelty is such as to cause injury to
the health of the petitioner. While arriving at such
conclusion, regard must be had to the social status,
educational level of the parties, the society they move in,
the possibility or otherwise of the parties ever living
together in case they are already living apart and all other
relevant facts and circumstances which it is neither possible
nor desirable to set out exhaustively. What is cruelty in one
case may not amount to cruelty in another case. It is a
matter to be determined in each case having regard to the
facts and circumstances of that case. If it is a case of
accusations and allegations regard must also be had to the
context in which they were made.”
“20. In Smt. Chanderkala Trivedi v. Dr. S.P. Trivedi
(1993(3) SCALE 541) the husband sued for divorce on the
ground of cruelty by wife. The wife filed a written
statement wherein she attributed adultery to the husband.
In reply thereto the husband put forward another allegation
against the wife that she was having undesirable association
with young boys. Considering the mutual allegations, R.M.
Sahai, J., speaking for Division Bench, observed:
“Whether the allegation of the husband that
she was in the habit of associating with young
boys and the findings recorded by the three
courts are correct or not but what is certain is
that once such allegations are made by the
husband and wife as have been made in this
case then it is obvious that the marriage of the
two cannot in any circumstance be continued
any further. The marriage appears to be
practically dead as from cruelty alleged by the
husband it has turned out to be at least
intimacy of the husband with a lady doctor and
unbecoming conduct of a Hindu wife.””
22. In the present case, we find that all these allegations which are
made by the husband in the Written Statement and in the Petition
under Section 9 clearly amount to cruelty and would have to be
treated as instances of cruelty. On both these grounds therefore,
Respondent/wife has established her case against her husband and
therefore the learned Judge of the Family Court after going through
the evidence has rightly held that the Respondent/wife has proved her
case and therefore granted decree of divorce in her favour.
23. It is quite surprising that on the one hand, Appellant/husband
wants to stay with the wife and has contested divorce petition and
pursued the appeal which is filed by him and has also filed a Petition
for restitution of conjugal rights and on the other hand in the said
Petition as well as in the Written Statement allegations have been
made by him against her which are truly scandalous to say the least.
From all the circumstances which have come on record, the only
inference which can be drawn is this that the husband only wishes to
harass the wife till the end and is really not interested in happily
residing with her.
24. So far as the judgments on which the reliance is placed by the
learned Counsel for the Appellant are concerned, there is no dispute
regarding the ratio of these judgments. It is well settled that the
judgment of either High Court or Apex Court cannot be treated as a
precedent unless facts in that case and the facts in the case in hand are
identical. The Apex Court in Zee Telefilms Ltd. and another vs. Union
of India and others1
has observed that the judgment should not be read
as a statute book and even if there is a slight difference in the facts of
the case or situation and circumstances under which the judgment was
delivered, it is not permissible to take out some stray sentences from
the judgment and apply them to the facts of the case in hand.
Therefore, though there is no dispute regarding ratio of those
judgments on which reliance is placed by the learned Counsel for the
Appellant/husband, we are of the view that the said judgments will
not apply to the facts of the present case.
1 (2005) 4 SCC 649
25. We must take note of another disturbing feature which we have
noticed in this case is that for the purpose of gaining her freedom from
an oppressive husband who apparently has chosen to treat the wife as
his slave displaying male chauvinistic tendency by continuously
harassing her and treating her like a dog on a leash, she had begged
to let her go and live independently and for that purpose she withdrew
the written complaint which she had filed with the police which is at
Exhibit41 only because the husband had promised her that he would
give her divorce by mutual consent and only on that assurance the said
complaint was withdrawn. In the crossexamination when this
question was asked to her, she had given her explanation as to why
she had withdrawn this complaint. She even made a statement that
she would not claim any maintenance; past, present or future or any
share in the property and would also resign from the partnership firm
where she was a partner alongwith her husband. However, husband's
heart did not melt down by this offer made by the wife. The wife did
not stop there. She even gave up her right to see her only son which
normally no mother would accept but she even chose to give up her
rights over the custody of her only son. The question which falls
before us is, why would this woman would go to such an extent of
forgiving every thing to get freedom? In spite of this, the husband
was not moved and he has chosen to again raise fictitious and
imaginary objections in the Consent Terms and finally put his foot
down. Parties always are at liberty to litigate and no one can compel a
party to file Consent Terms. We have therefore heard both the
learned Counsel appearing on behalf of both the parties at length.
26. For the reasons stated above FCA No.58 of 2015 is dismissed.
Since the Family Court Appeal No.58 of 2015 is dismissed and
disposed of, Family Court Appeal (Stamp) No.27753 of 2016 filed by
the husband for restitution of conjugal rights does not survive and it is
also disposed of. However, we do not propose to impose any cost on
the Appellant/husband since imposition of cost will not change the
mental attitude of the Appellant/husband.
27. In view of dismissal of both these appeals, Civil Application filed
by the wife for maintenance and for other reliefs will not survive. It is
accordingly disposed of. However, it is clarified that the
Respondent/wife is at liberty to take out appropriate separate
proceedings before the appropriate forum seeking the relief which she
has claimed in the Civil Application
28 The learned Counsel appearing on behalf of the
Appellant/husband requests for stay of this judgment for a period of
six weeks. In our view, question of granting stay does not arise since
both the appeals have been dismissed. The learned Counsel for the
Respondent/wife submitted that there was no stay operating till today.
Moreover, no stay has been asked for in the High Court.
29. Both these appeals are accordingly disposed of. Since both these
Appeals are disposed of, Civil Applications taken out therein do not
survive and they are also disposed of accordingly.
(MRS. SWAPNA S. JOSHI, J. ) (V.M. KANADE, J.)
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