Tuesday, February 11, 2014

Defamatory claims grounds for divorce: Bombay HC

Defamatory claims grounds for divorce: Bombay HC

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.71 OF 2006

Mr. M .. Appellant
Vs
Mrs. M .. Respondent
Shri Abhijit Sarwate along with ms. Kokila Kalra for the Appellant.
Shri M.A. Utagikar for the Respondent.
­­

CORAM  : A.S. OKA & S.C. GUPTE, JJ 

DATE ON WHICH SUBMISSIONS WERE HEARD : 27TH NOVEMBER 2013
DATE ON WHICH JUDGMENT IS PRONOUNCED: 7TH FEBRUARY 2014

JUDGMENT ( PER A.S. OKA, J )

1. By  this  Family Court  Appeal,   the Appellant  husband has taken an exception to the judgment and decree dated 5th 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 3rd 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  punishabl eunder 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   Dhiwar
1. He   also   relied   upon   an   unreported decision of this Court in the case of  Nagesh Dhanapp Chikanti v. Sau. Manisha Nagesh Chilkanti
2. He relied upon a decision of   the Apex Court in the case of V. Bhagat Vs. Mrs. D. Bhagat
3. 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 6tMay 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  alimony under Section 25 of the Hindu Marriage Act, 1955 ( for short “the said Act”).  
  
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 Nandanvankar.   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 Halder
      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 AIR 2005 Bombay 62
5 AIR 2003 SC 3174 

6. We have  given  careful   consideration  to  the   submissions. 
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 
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  
members by approaching women's cell.
8. The   next   important   incident   alleged   in   the   Petition   for 
divorce   is  of  8
th
  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  
16
th
  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.”
22. 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.”
9. As   stated   earlier,   the   affidavit   in­lieu of   examination­in­
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 28
th 
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 22
nd
 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 8
th
 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. 
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.  
(g) 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.”
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 28
th
 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 29
th
 June 1999.    Thereafter, the Appellant deserted her  
till 28
th
 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 8
th 
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 7
th
 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.   

13. Therefore, it will be necessary to make a reference to the  
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  
was ready and willing to cohabit with the Appellant even on the date of 
filing of the affidavit in lieu of the examination­in­chief.   
14. 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. 
18. 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.” 
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.I.   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 8
th
 January 2001. 
16. At this stage, it will be necessary to make a reference to the  
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 5
th
 November 1999.     From various documents on record  
which include the minutes of the meeting of Panchas of the Community 

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

21. Thus, what can be concluded is that the Appellant could 
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. 
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 28
th
  June 2000 to 8
th
  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.

22. 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  
account   of   ill­treatment   given   to   the   Respondent   has   remained 
unsubstantiated.       These   are   very   serious   allegations  made   in   the  
written   statement.   From  8
th
  January   2001   ,   the   parties   admittedly  
resided separately.   It not even an allegation made by the Respondent  
that after 8
th
 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 Ghosh
6
, illustrations of 
mental cruelty have been set out in Paragraph 101, which reads thus:
“101.  No uniform standard can ever be laid down 
for guidance, yet we deem it appropriate to  
enumerate   some   instances   of   human 
6 (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:
(i)  On consideration of complete matrimonial life 
of the parties, acute mental pain, agony and 
suffering as would not make possible for the  
parties   to   live  with  each  other   could  come  
within   the   broad   parameters   of   mental 
cruelty.
(ii)  On   comprehensive   appraisal   of   the   entire 
matrimonial   life   of   the   parties,   it   becomes 
abundantly  clear   that   situation  is   such  that 
the   wronged   party   cannot   reasonably   be  
asked   to   put   up   with   such   conduct   and 
continue to live with other party.
(iii)  Mere   coldness   or   lack   of   affection   cannot 
amount   to   cruelty,   frequent   rudeness   of 
language,  petulance  of  manner,   indifference  
and neglect may reach such a degree that it 
makes  the married  life  for  the other spouse 
absolutely intolerable.
(iv)  Mental cruelty is a state of mind. The feeling 
of deep anguish,  disappointment,  frustration 
in one spouse caused by the conduct of other  
for a long time may lead to mental cruelty.
(v)  A sustained course of abusive and humiliating 
treatment calculated to torture, discommode  
or render miserable life of the spouse.
(vi)  Sustained   unjustifiable   conduct   and 
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.

(vii)  Sustained   reprehensible   conduct,   studied 
neglect,   indifference or total  departure from 
the   normal   standard   of   conjugal   kindness  
causing  injury  to  mental  health or  deriving 
sadistic pleasure can also amount  to mental 
cruelty.
(viii)  The   conduct   must   be   much   more   than 
jealousy,   selfishness,   possessiveness,   which  
causes   unhappiness   and   dissatisfaction   and 
emotional   upset  may   not   be   a   ground   for 
grant   of   divorce   on   the   ground   of  mental  
cruelty.
(ix)  Mere trivial irritations, quarrels, normal wear 
and tear of the married life which happens in 
day­to­day   life   would   not   be   adequate   for 
grant   of   divorce   on   the   ground   of  mental  
cruelty.
(x)  The  married   life   should   be   reviewed   as   a 
whole   and   a   few  isolated   instances   over   a 
period of years will not amount to cruelty. The 
ill   conduct   must   be   persistent   for   a   fairly  
lengthy   period,   where   the   relationship   has 
deteriorated to an extent that because of the  
acts and 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.

(xiii)  Unilateral decision of either husband or wife 
after  marriage   not   to   have   child   from  the 
marriage may amount to cruelty.
(xiv)  Where   there   has   been   a   long   period   of 
continuous   separation,   it   may   fairly   be 
concluded   that   the   matrimonial   bond   is  
beyond repair. The marriage becomes a fiction 
though supported by a legal tie. By refusing to  
sever that tie, the law in such cases, does not  
serve   the   sanctity   of   marriage;   on   the  
contrary, it shows scant regard for the feelings 
and   emotions   of   the   parties.   In   such   like  
situations, it may lead to mental cruelty.”
24. In the case of  K. Srinivas Rao v. D.A. Deepa
7
 (2013)5 SCC 
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 Devi
8
, in Paragraphs 19 
and 20, the Apex Court held thus:
7 (2013)5 SCC 226
8 (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. 
20. 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)
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 

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.”
26. 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 
Respondent made unfounded defamatory allegation 
against the Appellant;  
(d)  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.
30. Now  turning   to   the   impugned   judgment,  we   find   from 
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. 
31. The   learned   Judge   of   the   Family   Court   has   not   at   all 
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. 
34. Accordingly,   the  Appeal  must   succeed   and  we   pass   the  
following order:
ORDER : 
(a) The impugned judgment and decree dated 5
th
 April 
2006 is quashed and set aside;
(b) The marriage solemnized between the Appellant and 
the Respondent on 3
rd
 July 1998 stands dissolved by 
a decree of divorce under Clause (ia) of Sub­section 
(1) of Section 13 of the Hindu Marriage Act, 1955;

(c) 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 observations made in this judgment ; 
(e) The Appeal is allowed on above terms;
(f) There will be no order as to costs.
 ( S.C. GUPTE, J ) ( A.S. OKA, J ) 

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