FAO 163/1997 Page 1 of 36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 163/1997
Date of Decision: August 20, 2010
MRS. FLORA BOSE ….. Appellant
Through: Mr. Sunil Mittal, Advocate
VERSUS
SUPROTI BOSE ….. Respondent
Through: Nemo.
% CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be allowed to see the
judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported in the Digest? Yes
J U D G M E N T
ARUNA SURESH, J.
1. Under challenge in this appeal is the judgment and decree of the
learned Additional District Judge dated 8th
April, 1997 whereby the
petition of the appellant filed under Section 13 (1) (ia) and (ib) of the
Hindu Marriage Act was dismissed.
2. Succinctly, the facts of the case are that parties to the petition were
married on 8.12.1974 according to Hindu rites and ceremonies. One
FAO 163/1997 Page 2 of 36
male child Ankur Bose was borne out of the wedlock on 7.8.1978.
Respondent is an alcoholic. Many a times he remained out of job
and under the influence of liquor and even otherwise he used to treat
the petitioner with cruelty. Respondent had to vacate the rental
premises on account of non payment of rent and petitioner had to
depend for financial support on her parents. Respondent had stopped
taking care of the family needs. After vacating the rented
accommodation parties started living in the house of Petitioner‟s
parents. After shifting to her parents house, petitioner continued
with her job and in the evenings she started going to theater leaving
her child in the care of her parents because Respondent did not show
any inclination or interest to look after the child. Petitioner became
pregnant again, to which Respondent expressed his shock and
disowned the child as his own. He suspected her fidelity and
Petitioner had to go for medical termination of the pregnancy. To
meet his drinking habit, he used to take money from the Petitioner or
her parents and some times even sold out household articles.
Petitioner was allotted a flat and Respondent wanted to sell the
allotment letter to which Petitioner did not agree. This resulted into
hurling of abuses and physical beatings to the Petitioner by the
Respondent. The disputes and differences increased to the extent
that parties stopped their physical relations. Petitioner sought
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guidance from a voluntary organization „Saheli‟, where Respondent
was called and the differences were reconciled with a view to restart
the matrimonial life. Parties started living together w.e.f.
20.08.1989. However, disputes and differences continued as before.
On 2.12.1989, allegedly a scene was created in the house and
Respondent took out a kitchen knife to assault the Petitioner but,
when their son intervened, he sustained injuries and was
hospitalized. Petitioner lodged a complaint about this incident with
the police on 3.12.1989. Since 2.12.1989 parties are living
separately.
3. Respondent has refuted the allegations of the Petitioner that he is
alcoholic or that he had been beating his wife and the child or that he
did not take care of him or that he had no interest in the child. He has
alleged that he never deserted the Petitioner but was forced to leave
the house on 2.12.1989. He has also alleged that he had to vacate the
rented accommodation because of eviction decree suffered by him
for bona fide necessity and not on account of non payment of rent.
4. On the pleadings of the parties, following issues were framed for
consideration by the Court:-
(1) Whether the Respondent has treated the Petitioner with cruelty as
alleged?
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(2) Whether the Respondent has deserted the Petitioner for continous
period of two years immediately preceding the presentation of the
petition as alleged?
(3) Relief.
5. Respondent has been contesting the appeal in person. On 6th
August, 2009 he had stated that he was ready and willing to divorce
the Petitioner by mutual consent provided he was given half share in
MIG flat No.57-D, Pocket IV, Mayur Vihar, Phase-1, in which he
claimed himself to be the co-owner with the appellant. He had also
agreed that if the appellant was able to show Conveyance Deed in
her favour in respect of the said flat, he would divorce her.
Thereafter the matter was listed for 12th
August, 2009 with the
direction to the appellant to produce the Conveyance Deed of the
said flat. However, on 12.08.2009, the Respondent did not appear
though appellant had brought the original Conveyance Deed
executed in her favour by the DDA in respect of the said flat.
ISSUE NO.1.
6. Mr. Sunil Mittal counsel for the appellant (being referred to as
Petitioner) has submitted that the Trial Judge while delivering the
impugned judgment, has not carefully examined the statement of the
witnesses of the parties and erred in disbelieving the Petitioner‟s
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assertion that Respondent indulged in heavy drinking and thereafter
caused physical and mental cruelty to her only on the ground that
there was no documentary evidence or complaint made by the
Petitioner regarding the drinking habit of the Respondent and the
cruelty perpetuated by the Respondent on the Petitioner under the
influence of liquor. He was weighed by the fact that Respondent had
taken another premises on rent at Chitranjan Park after vacating the
earlier premises. While observing that he was employed and if he
was alcoholic and unemployed, he could not have afforded the rented
accommodation in Chitranjan Park. He has argued that the trial
Court failed to take notice of the complaints Ex.PW-1/3 and
Ex.PW1/5 lodged by the Petitioner with the police.
7. It is further argued that the Trial Court went wrong while observing
that the allegations of beatings levelled against the Respondent and
forcing her to sell allotment papers of DDA flat because of which
she had to suffer serious mental pain and agony are general in nature
as there was no complaint of receiving any physical injury or bodily
injury but she complained of having suffered mental torture and
agony. He further emphasized that the Trial Court went wrong in
observing that there is no complaint or any evidence produced by the
Petitioner to show that she was being asked by the Respondent for
disposal of the flat and the allegations appeared to be exaggerated. It
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is also argued that Trial Court committed an error in disbelieving the
Petitioner that she had to go for medical termination of her
pregnancy because of the allegations levelled by the Respondent
against her that she had become pregnant through someone else. The
Court also went wrong in appreciating that she would not have
continued to live with the Respondent for the sake of the child, yet
she did not raise any whisper, neither to any of her relations nor to
the relations of the Respondent. The Court also did not properly
appreciate the statement of the Petitioner that Respondent was not
working anywhere after November, 1982, when it observed that
Petitioner did not summon the record of M/s. Akshay Industries or of
M/s. Greaves Cotton Industries to prove when Respondent left their
services and that the Petitioner therefore failed to discharge the onus
of proving that Respondent was unemployed. Counsel for the
appellant has emphasized that the findings of the trial Court on each
and every acts of cruelty as narrated by the Petitioner in the petition
and proved in evidence by way of her own testimony are erroneous
and perverse in nature.
8. Learned counsel for the Petitioner has relied upon following cases:-
(1) Smt. Vimla Mehra vs. Shri K.S. Mehra, 2009 III AD (Delhi)
11;
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(2) Samar Ghosh vs. Jaya Ghosh, JT 2007 (5) SC 569;
(3) Geeta Jagdish Mangtani vs. Jagdish Mangtani, 2005 Indlaw
SC 561;
(4) A. Jayachandra vs. Aneel Kaur, 2004 Indlaw SC 1034;
(5) Vinita Saxena vs. Pankaj Pandit , 2006 (87) DRJ 655 (SC);
(6) Naveen Kohli vs. Neelu Kohli, 2006 (87) DRJ 630 (SC);
(7) Rajinder Pershad (dead) by LRs. vs. Smt. Darshana Devi,
2001 VI AD (SC) 272.
9. In brief, the acts of cruelty alleged in the petition are :-
(1) Respondent is an alcoholic and under the influence of liquor,
he had been indulging in verbal abuses and physical beatings
to the appellant.
(2) To meet his financial requirements as well as his need for
liquor, he had been making monetary demands on the
appellant and her parents and also mentally and physically
tortured her for fulfillment of his demands.
(3) Appellant registered a flat in her name with the DDA. On
allotment of the said flat Respondent pressurized, abused and
harassed her to sell the allotment letter but, Petitioner did not
succumb to his pressure.
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(4) Respondent continued with his habit of drinking heavily and
even failed to pay rent and suffered eviction. With the result
parties had to reside in the house of parents of the Petitioner.
(5) In 1981 Petitioner conceived for the second time but
Respondent suspected her fidelity and disowned the child as
his and indulged into causing mental and physical torture to
her. Petitioner had to undergo medical termination of
pregnancy, but for sake of the child, she continued to live with
him.
(6) In May, 1989 Respondent came back home heavily drunk and
gave her physical beatings, abused her, threw utensils and spit
and vomited on her and quarreled with her the whole night.
Appellant had to leave the home in the morning.
(7) With the intervention of social organization „Saheli‟, parties
were reunited on 20.09.1989. However, there was no
improvement in their relationship. On 2.12.1989 a quarrel
ensued between the parties when Respondent came home
drunk at about 11:00 P.M. He allegedly picked up a knife and
threatened to kill the appellant. However, the child intervened
and received injuries on his person. Appellant made a
complaint at Police Station Mayur Vihar and the child was got
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medically examined. Respondent left the company of the
Petitioner on 3.12.1989 and since thereafter parties are living
separately.
10. Parties to the petition were known to each other even before
marriage as they were working in the same theater and had been
meeting with each other before they took the decision to get married.
11. Appellant as PW-1 has deposed that after losing lob in January, 1975
Respondent indulged in the habit of drinking wine with his friends.
Though Respondent was employed with M/s. Akshay Industries in
November, 1975 his drinking habits increased and Respondent even
sold household articles to buy liquor for himself. Respondent was
again unemployed and appellant had to take a part time job in 1982
with Delhi Art Theater leaving her child in the custody of her
parents. She has deposed that instead of improving his behaviour
Respondent started consuming more liquor and torturing her
mentally as well as physically by giving her beatings. He would
take money from her for his drink and also forced her to get money
from her parents. Respondent with a view to purchase drinks also
took loan and started selling household articles. She has deposed
that whenever she resisted the demand of Respondent for money, she
was given beatings. Because of the beatings she suffered mental
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pain as well as physical torture. She has deposed on oath that
because of excessive drinking Respondent started coming late at
home and she and the Respondent seized to have any physical
relationship with each other.
12. Petitioner in her statement has narrated the instance of May, 1989
stating that, Respondent returned home late at night in drunken
condition and for no rhyme or reason gave her physical beatings,
pulled her hair, sat on her, abused her, spit and vomited on her in the
absence of her child who had gone to school trip. She has stated that
Respondent quarreled with her throughout the night with the result,
she had to leave house in the morning and take refuge in her parents‟
house. There is no effective cross examination of the appellant and
Respondent as RW-1 has not specifically refuted the act of cruelty
committed by him on the Petitioner in May, 1989.
13. The other incident she has narrated is of 2.12.1989, when under the
guidance of „Shaheli‟, a voluntary women organization, she had
started living with the Respondent and the child from 20.09.1989.
She has testified that on that date Respondent returned home at
about 11:00 P.M. in drunken condition and started abusing her for no
reason. When he did not cool down, she asked him as to why he was
abusive, on which Respondent picked up utensils and threw them
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upon her and he also picked up a knife from the kitchen and
threatened her of life. To save herself, she went to the room and her
son, who had intervened between her and the Respondent was also
threatened and was injured by him with a knife on his left eye.
14. In between 20.09.1989 to 2.12.1989, as per her statement, parties
continued to fight and Respondent continued to come home late at
night in drunken condition. He showed his dis-interest towards the
Petitioner as well as the child.
15. There is no cross examination of the appellant about the behaviour of
the Respondent towards the appellant after their re-union on
20.09.1989. It is not disputed that the parties had reconciled with
the assistance of voluntary organization „Saheli‟, and a document
Ex.PW-1/1 dated 5.08.1989 (copy of the same Ex. RW-2/1) was
executed. However, this document in no manner suggests that
parties had reconciled their dispute. Rather it suggests separation
and divorce by mutual consent. It seems that after execution of this
document parties continued to visit „Saheli‟, on its calls and
consequently decided to live together. This is reflected from the
letter dated 20.09.1989 Ex.PW-1/17, written by the Respondent to
Saheli, acknowledging their advice and assistance in solving their
problem and helping them to re-unite. However, there is no
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evidence produced by the Respondent on record to suggest that he
had improved upon his behaviour towards the Petitioner.
16. It has come in evidence that after marriage parties started living in a
rented house at Chitranjan Park. At that time, Respondent was
employed with M/s. Office Equipments and he lost his job in
January, 1975. Petitioner took up job in September, 1975 with M/s.
K.G.Khosla Compressor at Faridabad. Respondent had taken a job
with M/s. Akshay Industries in 1975 and thereafter her parents dis-
continued the financial support. She has deposed that the rented
accommodation had to be vacated on 31.12.1982 because
Respondent did not pay the rent of the premises and suffered eviction
order and she was forced to take shelter in her parents‟ house along
with Respondent and the child. She has denied the suggestion that
the tenanted premises were vacated for bonafide requirement of the
landlord. Respondent has a grouse that they were provided garage
accommodation by appellant‟s parents and not in the house.
Certified copy of the eviction order has not been placed and proved
on record by the Respondent to demolish the statement of the
appellant that they had to vacate the rented premises at Chitranjan
Park for non payment of rent. Respondent has not placed on record
any document to indicate that he was employed and therefore there
was no occasion for him to demand any money from his wife, the
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appellant or his in-laws to meet his demands. Since Petitioner
categorically deposed that Respondent was unemployed for most of
the time, it was for him to demolish her evidence by producing
relevant evidence on record, documentary or otherwise, to indicate
his financial status. Pass Book Ex.PW-1/R-3 pertains to the year
1985 till January, 1991. Debit entries in the account book basically
relate to the school fees which might have been paid by the
Respondent. To this also the explanation has been given by the
Petitioner that, since school fees account was opened under the
guardianship of father, she had been financing the Respondent to pay
school fees of the child from the said account.
17. To a suggestion put to her in the cross examination she has deposed
that „It is correct that my husband has been resorting to physical
injuries to me right from the marriage. I got married in the year,
1974. I tolerated the illtreatment of the respondent till, 1989 in the
hope that the behaviour of the respondent might improve. It is
correct that the influence of the father/respondent on the child was
not congenial‟.
18. It is pertinent that the testimony of the Petitioner that Respondent is
addicted to heavy drinking and has been giving physical beatings and
causing mental torture to her in drunken condition remained
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uncontroverted as she has not been cross examined on this aspect
except that, when asked, she has replied that her husband was
addicted to alcohol right from the marriage.
19. True that Respondent in his statement has denied that every day he
indulged in excessive drinking, but then his vague denial in the
absence of any cross examination of the Petitioner would not in any
manner prove that Respondent was not alcoholic or that under the
influence of liquor he did not torture his wife physically or mentally.
20. The Trial Court while considering the oral evidence of the parties
observed:-
“34. As regards the grounds of cruelty which
are based mainly on the drinking habits of the
respondent and on the basis of fact that
respondent was unemployed for a considerable
period and that the respondent had always been
asking the Petitioner to bring money from her
parents, all these do not stand proved as I have
already observed above.”
“35. As regards the allegations about drinking
habit of the respondent, there is no concrete
evidence except the oral testimony of both the
parties. The petitioner/wife has levelled
allegations that the respondent/ husband was a
regular drunker and the respondent/ husband
has denied the same. Since no particular
incident of drinking has been proved on record,
whereby respondent had taken excessive
drinking and then under the influence of liquor
FAO 163/1997 Page 15 of 36
he had caused any cruelty upon the petitioner or
had treated the petitioner with any cruelty. So I
find that general allegations regarding drinking
can not be termed as cruelty of such a nature
which may amount of matrimonial offence of
cruelty for the purposes of dissolution of
marriage.”
21. The fact findings of the Court are not born out of the record.
Incidents of cruelty have been specifically testified by the Petitioner
as PW-1. Such as incidents of May, 1989 and 2.12.1989. These
allegations cannot in any manner be considered as general in nature.
It is proved in evidence of the Petitioner that Respondent used to
physically and mentally torture her for bringing money from her
parents for fulfillment of his requirement of liquor.
22. To my mind, the Trial Court also did not properly appreciate the
allegations of unemployment and torture for money as proved by the
appellant in her testimony, while observing:-
“30. ……will go to show that the respondent
had at least not lost his job and that is why after
vacating one rental accommodation at
Inderpuri, he took up another rental
accommodation in Chitranjan Park. Though he
had denied that he started indulging in drinking
liquor daily and he has not at all admitted fact
of taking drinks, yet assuming for the sake of
arguments that at times the respondent had been
taking drinks but that factor alone will not be
FAO 163/1997 Page 16 of 36
sufficient to say that the petitioner was being
treated with cruelty by the respondent unless the
said drinking habit of the respondent is coupled
with the overt act of creating scenes or giving
beatings to the petitioner……. that there is no
document on record to suggest that there was
any dispute between the parties either over
drinking habit of the respondent or the
respondent not taking interest in the family
affairs or not supporting the family financially.”
“32. ….. that none of the parties has
summoned any record from M/s Akshay
Industries or from M/s Greaves Cotton
Industries to show that the respondent was not
working anywhere after Nov., 82 and was
unemployed for some period. Since the
allegation of unemployment of respondent are
by the petitioner so the onus to prove the same
was on petitioner. She should have shown the
records and prove that respondent was
unemployed.
33.……. So there is a presumption that the
petitioner might have taken up a part time job
with Delhi Art Theatre on account of her
interest in that field…... But that does not show
that she was compelled to take part time job
because of financial crisis as the petitioner has
not proved on record to show that during the
year 1982 when she took up part time job
respondent was out of job and there was no
other source of income to properly maintain the
family.”
23. The Trial Court went wrong in observing that after vacating the
rented accommodation at Inderpuri, he took up another rented
accommodation at Chitranjan Park because, soon after the marriage
FAO 163/1997 Page 17 of 36
parties first lived at Inder Puri with the parents of the Respondent for
a very short period and thereafter they took rented accommodation at
Chitranjan Park, where they continued to reside till the eviction order
was passed against the Respondent in 1982 and therefore the Trial
Court was not right in its approach to discard the testimony of the
appellant that Respondent was unemployed when it observed that
Respondent had not lost his job and that is why after vacating the
rented accommodation at Inder Puri, took another accommodation at
Chitranjan Park. Analysis of evidence by the Trial Court is
therefore, erroneous and has to be brushed aside.
24. There cannot be any direct, oral or documentary evidence except the
testimony of the Petitioner and the circumstantial evidence to prove
that there was dispute between the parties either for drinking habit of
the Respondent or for Respondent not taking any interest in the
family affairs or for not supporting the family financially. Financial
status of the Respondent, indicated in his pass book, has already been
discussed above. Needless to say, Respondent has not controverted
the statement of the Petitioner that he was unemployed or that he was
not supporting her financially. Rather, he tortured her physically and
mentally to take money from her and her parents to meet his need for
liquor. In his cross examination he admitted that he had no
documentary proof to show that he was in employment and was
FAO 163/1997 Page 18 of 36
getting salary and was financially sound to meet his requirements
and that of his wife and child.
25. Respondent in his cross examination did admit that a complaint was
made by the appellant with a voluntary organization „Saheli‟, where
he was called number of times for reconciliation. He also admitted
that a complaint was lodged by his wife with CAW Cell which
remained alive during the period from 20.09.1989 to 2.12.1989 when
parties were living together. This suggests that they started living
together on a trial basis to understand each other better but,
unfortunately, they again fell out as Respondent did not improve his
behaviour. Admittedly, Petitioner has been financially independent
throughout as she remained in employment and also worked in the
theater on part time employment after her office hours. If the
Respondent was financially sound, there was no need for the
Petitioner to take up a part time job in the evening after coming
home from the office at the cost of neglecting her house and the child
who admittedly was being taken care of by her parents in her
absence.
26. In her complaint dated 3.12.1989 Ex.PW-1/3, made at Police Station
Mayur Vihar, Petitioner has specifically levelled allegations against
the Respondent that on 2.12.1989 he came home at about 11:00 P.M.
FAO 163/1997 Page 19 of 36
Under the influence of liquor he picked up a quarrel with her.
Similar were her allegations in her complaint Ex.PW-1/5 made on
the same day to SHO, Police Station Trilok Puri. It is not in dispute
that Respondent was called by the SHO of the concerned Police
Station for interrogation.
27. There is a letter written by the Respondent on 11.09.1989 Ex.PW-
1/19 on the record. Few lines of the said letter being relevant are
reproduced below:-
“… Far from giving proper return for
this love. I have behaved in a very cruel
manner to you from all angles, mental,
physical, financial and social….”
“… Far from being greatful to you for
this, I have beaten you, I have tortured
you a lot, and I confess this thousand
times. I give you words that I will work
hard to keep your happiness intact….”
“Save me from the grip of vice, and
allow me to do penance for all my
sins…..”
28. Thus, there is clear admission on the part of the Respondent made to
the appellant in this letter that he had been torturing her mentally,
physically, financially and socially. He was not providing any
finance to the appellant, rather forced her to part with money to meet
his demands for liquor. This also indicates that Respondent was not
financially independent; being jobless as alleged by the Petitioner.
FAO 163/1997 Page 20 of 36
When he has referred to a „vice‟, and sought forgiveness from the
Petitioner, he referred to no other vice but his addiction to liquor. It
was because of excessive drinking, he physically and mentally
tortured her, did not take any interest in the family, did not care for
her and the child.
29. This letter was written by the Respondent just nine days before he
joined the company of the Petitioner in September 1989 and re-
started living with her. However, despite all the assurances and
undertakings given by him in this letter, he completely failed to
honour them. The Trial Court has failed to appreciate the
documentary evidence as discussed above and erroneously observed
that there was no direct evidence produced on record for the alleged
mis-conduct and ill-behaviour of the Respondent with the Petitioner.
30. Another instance of grave mental cruelty is when in 1981 Petitioner
conceived for the second time, she suffered physical as well as
mental torture at the hands of the Respondent because he suspected
her fidelity and she had to get medical termination of the pregnancy
done.
31. The Trial Court committed error when it observed that Petitioner
could not have continued to live with the Respondent after
termination of the pregnancy on the alleged ground of suspected
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fidelity but she did not do so and continued to live with the
Respondent indicating that no such cruelty was committed by the
Respondent and that the statement of the Petitioner was not
believable.
32. Respondent has not disputed that in 1981 Petitioner had conceived
second time and also that she had to undergo medical termination of
pregnancy. There is no cross examination of the Petitioner on this
aspect of the matter, nor Respondent has stated anything in his
statement as RW-1 indicating the reasons which might have forced
the Petitioner to get here pregnancy terminated.
33. Therefore, I find no reason to disbelieve the testimony of the
Petitioner that she had to undergo termination of pregnancy because
of the Respondent‟s suspicion on her fidelity, and he accused that the
child was not his and disowned him. Nothing can be more cruel to a
woman, rather a mother, than such accusation on her character and
also the father disowning the child.
34. Rift between the parties widened further when Petitioner was allotted
a flat by the DDA. It has come in evidence that Respondent
pressurized, abused, harassed and ill-treated the Petitioner for selling
the allotment documents to which Petitioner never agreed. To
pressurize her, Respondent gave her physical beatings and mentally
FAO 163/1997 Page 22 of 36
tortured her. It has also come in her statement, which has remained
uncontroverted on record that, Respondent never provided any
financial assistance to her for purchase of the flat. It is not the case
of the Respondent in his testimony that he had financially supported
his wife to pay the purchase price of the said flat to DDA. It is an
admitted case of the parties that Respondent had filed a civil suit
seeking half share in the said flat but he lost the case. His challenge
to the judgment and decree of the trial court in appeal also failed. It
is obvious that Respondent pressurized appellant to sell the allotment
of the flat with a view to have easy access to finances which would
have come in the hands of the Petitioner on sale of the flat. It is
pertinent that even before this Court, Respondent made a statement
that he was ready and willing to divorce his wife by mutual consent
provided, he was given half share in the flat, being co-owner. When
Petitioner produced the original Conveyance Deed dated 28.12.2005
on the desire of the Respondent, he absented himself knowing it well
that the flat was owned by the Petitioner and he has no share in the
same. A copy of the Conveyance Deed has been placed on record by
her to prove that the said flat is allotted to her in her individual name
and not jointly with the Respondent. A person, who remained almost
unemployed during his stay with his wife, started spending money on
liquor, indiscriminately, came home late at night, gave physical
FAO 163/1997 Page 23 of 36
beatings as well as mentally tortured her and least of all demanded
share in her flat, cannot claim that he was not „CRUEL‟ to his wife.
Petitioner has been running her household and bringing up the child
single handedly, with no support from her husband. Behaviour of
the Respondent over the years can only be termed as „CRUEL‟.
35. The worst incident of cruelty, as proved on record, is of the night of
2.12.1989. It is proved in evidence from the testimony of the RW1,
which finds corroboration from consequent FIRs/police complaints
made by the Petitioner at Police Station, Trilok Puri and Mayur
Vihar, that on the fateful night Respondent came heavily drunken
and for no rhyme or reason picked up quarrel with her, gave her
beatings, abused her, picked up utensils and threw them on her,
picked up a knife and threatened her of life. When suddenly her son
intervened to save her from his anger and threat under the influence
of liquor and when he tried to inflict injuries on her, he got injuries
on his left eye. He was taken to SDN hospital where he was
provided with proper medical assistance. MLC Ex. PW-1/2 was
prepared by the concerned doctor of the hospital. As per this MLC
history of the patient as recorded is “being beaten by blunt weapon
q/e and left eye congested”. Respondent in his cross examination
could not explain as to how his son got injuries on his left eye. He
has deposed that he had no idea if on the fateful night of 2.12.1989
FAO 163/1997 Page 24 of 36
his son suffered injuries on his left eye. He also had no idea if his
son was injured when he made attempt to save his mother during his
fight with the Petitioner. According to him, he came to know that
his child was provided medical aid only after coming to the Court.
He admitted that neighbours did come on account of commotion
after hearing the loud voice and shouting of his wife. He did admit
that on 3.12.1989 in the morning, parents of the appellant and
volunteers from „Saheli‟, came to his house.
36. Thus, it is clear from the answers given by the Respondent in his
cross examination that, he could not recollect the incident of
2.12.1989, obviously he was under the influence of liquor when he
physically beat his wife, threw utensils on her and tried to cause
injuries with a knife. To save herself, Petitioner had to lock herself
in the room. To save his mother when the child intervened, he also
received injuries on his left eye.
37. The word „cruelty‟ finds no definition in the Act. Therefore, the
word „cruelty‟ used in Section 13 (1) (ia) of the Act is in the context
of human conduct and behaviour in relation to and in respect of
matrimonial duties or obligations. It is a course or conduct of one
spouse which adversely affects the other spouse. Cruelty can be
mental or physical, intentional or unintentional. While judging the
FAO 163/1997 Page 25 of 36
physical cruelty, Court has to judge the degree of such physical
torture and if it is mental, the enquiry is required to the nature of
cruel treatment and then as to the impact of such treatment on the
mind of the other spouse.
38. The ingredients of cruelty as required to be proved on record by the
Petitioner are based on delicate personal relationship of husband and
wife. Court, therefore, has to see the probabilities in a given case to
find out the legal cruelty, not merely as a matter of fact, but as to the
effect on the mind of the Petitioner spouse because of the acts or
omission of the other. This cruelty besides physical, mental can also
be corporeal.
39. To constitute cruelty, the conduct complained of should be “grave
and weighty” so as to come to the conclusion that the Petitioner
spouse cannot be reasonably expected to live with the other spouse.
It must be something more serious than “ordinary wear and tear of
married life”. The conduct, taking into consideration the
circumstances and background has to be examined to reach the
conclusion whether the conduct complained of amounts to cruelty in
the matrimonial law. Court dealing with the petition filed for
divorce on the ground of cruelty has to keep in mind that the
problems before it are those of human beings and the psychological
FAO 163/1997 Page 26 of 36
changes in a spouse‟s conduct have to be borne in mind before
disposing of the petition for divorce. However, insignificant or
trifling, such conduct may cause pain in the mind of another. But
before such conduct can be called cruelty, it must touch a certain
pitch of severity.
40. Petty quibbles, trifling differences should not be exaggerated and
magnified to destroy a marriage. Foundation of marriage is
tolerance, adjustment and respect towards one another. Therefore,
inherently tolerance of each other‟s fault to a certain bearable extent
has to be kept in mind before considering a particular conduct of a
spouse towards the other as tantamounting to „cruelty‟. The Court
has to consider the mental and physical conditions of the parties,
their characters and social status and therefore, the incidents which
can be termed as „cruelty‟ have to be adjudged in a case on the facts
and circumstances and the evidence adduced on record. It is not
required that physical violence as well as mental torture are essential
to constitute cruelty. Even conduct inflicting a miserable mental
agony and torture under the given circumstances may constitute
cruelty within the meaning of Section 13(1) (ia) of the Act.
41. In case of physical cruelty, the Court generally gets direct evidence
but in case of mental cruelty, the Court has to first make an inquiry
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to the nature of cruel treatment, the impact of such treatment in the
mind of the spouse if it caused reasonable apprehension that it can be
harmful or dangerous to live with the other. It is not necessary for
the party to narrate each incident against the other spouse to
constitute such conducts as cruelty. Sometimes two or three
incidents may be sufficient to prove the cruelty committed on the
petitioner by the other spouse. Many a times mental cruelty is more
severe than the physical cruelty.
42. In ‘Samar Ghosh Vs. Jaya Ghosh’ (2007) 4 SCC 51, the Supreme
Court has enumerated some instances of human behaviour which
may be relevant in dealing with the cases of mental cruelty. They
are:
“ (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
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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 day to
day 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
sterilization 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
FAO 163/1997 Page 29 of 36
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.”
43. Evidently mental cruelty cannot be comprehensively defined, within
which all kinds of cases of mental cruelty can be covered. Human
mind is extremely complex and human behaviour is equally
complicated. Similarly human ingenuity has no bound and
therefore, to assimilate the entire human behaviour in one definition
is almost impossible. What may amount to cruelty in one case may
not amount to cruelty in the other case because, concept of cruelty
differ from person to person depending upon his/her upbringing,
level of sensitivity, educational, family and cultural background,
financial position, social status, customs, traditions, religious beliefs,
human values and their value system. The concept of mental cruelty
FAO 163/1997 Page 30 of 36
has changed with the passage of time; because of impact of modern
culture through various medias electronic and print and other value
system. Therefore, there cannot be any straight jacket formula or
fixed parameters for determining the mental cruelty in matrimonial
matters. No uniform standard, therefore, can be laid down for
guidance what may constitute mental cruelty in matrimonial
disputes.
44. Coming back to the facts and circumstances of this case, parties to
the petition were married in December, 1974. They continued to live
together for a period of fifteen years except a short separation from
May 1989 to September 1989. Petitioner has been tolerating the
physical torture as well as mental agony at the hands of the
Respondent for the said period. She continued to live with the
Respondent despite the fact that he suspected her fidelity when she
conceived for the second time in 1981. She must have suffered
grave mental pain and agony when she had to go for medical
termination of pregnancy. Respondent was never financially stable
and sound. Petitioner had been working since after her marriage and
looking after the financial needs of the family including that of the
Respondent. It is not disputed that parties had to vacate the rented
accommodation in Chitranjan Park because of the eviction order,
which Respondent suffered. Respondent did not make any
FAO 163/1997 Page 31 of 36
arrangement for another rented accommodation. Rather he shifted
with the Petitioner in the house of her parents, where she continued
to live in a garage for quite sometime. Respondent was in the habit
of taking liquor but, he became alcoholic over the period of time.
45. As discussed above, there is enough evidence to indicate that to meet
his demands for liquor, he physically and mentally tortured the
Petitioner. Some of the instances of physical and mental cruelty
proved on record are of 1981, May 1989 and of 2.12.1989. It is
significant that behaviour of the Respondent became more cruel
when he refused to contribute for the purchase of the flat allotted in
the name of the Petitioner by the DDA. Not only this, he wanted to
sell the allotment but, could not succeed as Petitioner remained firm
on her decision not to sell the allotment, for which she had to face
physical as well as mental cruelty at the hands of the Respondent.
The conduct of the Respondent in pressurizing the Petitioner to sell
the allotment is obvious from his various subsequent acts. He filed a
suit claiming half share in the property but he lost. He disputed the
absolute title of the Petitioner in the said property at Mayur Vihar.
Even in this appeal, he made it clear that he would divorce the
Petitioner only after he was given half share in the house. Under the
circumstances, to say that conduct of the Respondent towards the
Petitioner cannot be construed as cruelty within the meaning of
FAO 163/1997 Page 32 of 36
Section 13(1) (ia) of the Act would not be correct.
46. Parties to the appeal are artists. An artist by temperament is
emotional and sensitive. Behaviour of the Respondent towards the
Petitioner throughout fifteen years of their living together has been
unreasonable and torturous. His ill behaviour can be safely
construed as grave. He has been ill-treating the Petitioner. There is
evidence to indicate that there was cessation of sexual intercourse,
neglect of the Petitioner and the family, his indifference attitude
towards the family and his assertion that Petitioner is unchaste, are
factors which constitute mental or legal cruelty. Respondent, under
the influence of liquor seemed to be losing his temper to such an
extent that he would indulge into giving severe beatings, vomiting on
his wife, spitting on her. Once be picked up a knife and threatened
the Petitioner of life. In this fight, it was the innocent child, their
son, who received injuries on his left eye. What could be more then
what has been discussed above to construe legal cruelty?
Respondent though had been assuring the Petitioner of reformation,
neither his behaviour nor his conduct improved. Rather his
behaviour and indifference to the Petitioner and the family increased.
It was when Petitioner could not bear the Respondent any further that
she left the house in May 1989 and went to her parents. She tried to
readjust with the Respondent with the assistance of women
FAO 163/1997 Page 33 of 36
organization „Saheli‟. Again Respondent did not try to improve
himself in any manner. His need for finances was another reason for
his torturous conduct towards the Petitioner. Petitioner, therefore,
suffered physical as well as mental cruelty and it could not be
expected that they could live together after the incident of 2.12.1989.
47. Since after December 1989, parties are living separately. Son is now
about 31 years of age and settled in life. Parties are living separately
for about 21 years. The matrimonial bond between the parties has,
therefore, been ruptured beyond repair because of mental and
physical cruelty caused by the Respondent. After separation, the
parties did not have any interaction with each other. Rather they
have been litigating, may be in a Civil Court of law. I find on record
a complaint dated 5th
February, 1989 Ex. PW-1/15, disclosing the
behaviour of the Respondent of 4.02.1989. Respondent has admitted
that he has not met his child since after 2.12.1989.
48. Trial Court did not properly appreciate the uncontroverted statement
of the Petitioner when it observed that the allegations of beatings,
mental torture, pain and agony suffered by the Petitioner were quite
general in nature and that the ground of cruelty as pleaded by the
Petitioner did not prove the extent that she was being treated by the
Respondent with such cruelty, which may amount to matrimonial
FAO 163/1997 Page 34 of 36
events of cruelty under Section 13(1) (ia) of the Act. The
appreciation of evidence by the Trial Court is not in the correct
perspective on facts and circumstances of the case and evidence
adduced on record. Uncontroverted evidence of the Petitioner has
proved physical as well as mental cruelty and every incident of such
cruel behaviour of the Respondent clearly established that
Respondent treated her with legal cruelty.
49. Hence, the findings of the Trial Court on this issue are set aside and
it is decided in favour of the Petitioner.
ISSUE NO. 2
50. On 3rd
December, 1989 when Respondent left the house he was
residing in Mayur Vihar i.e. the flat owned by the Petitioner. This
happened because of a quarrel having taken place between the
parties on the intervening night of 2nd
/3rd
December, 1989. Parties
continued to fight the whole night. Respondent was violent and
abusive towards the Petitioner in so much so that he even inflicted
injury to his son. It was under these circumstances that he left the
house in the morning of 3rd
December 1989 in the presence of
workers of women organization „Saheli‟ and parents of the
Petitioner.
51. There is no dispute that Respondent executed a document Ex. PW-
FAO 163/1997 Page 35 of 36
1/4 on 3rd
December, 1989 in the presence of S.Vatsyayan, PW-2. In
this document, he has written that he was finally leaving the
premises No.57-D, Pocket-IV, Mayur Vihar, New Delhi of his own
with a pledge not to come back to the said premises and disturb the
Petitioner s in future for any reason whatsoever. It is submitted by
counsel for the Petitioner that Respondent deserted the Petitioner on
3.12.1989 of his own. I find no force in his submission. It is
significant to note that in the last few lines of this letter he has
written that he would not claim any rights or privileges in the said
flat. In return he wanted that Petitioner should not seek any
monetary assistance from him for the household from that date. It is
also recorded that parties had agreed to go in for mutual divorce of
marriage in a court of law within fifteen days from that date. Thus, it
is clear from this letter that Respondent had deserted the Petitioner
because of the incident of the night. It cannot be said that he was left
with no option but to leave the house.
52. As pointed out above, Petitioner had lodged a complaint dated 3rd
December, 1989 Ex. PW-1/3. Perusal of this complaint indicate that
Respondent had to leave the house as a result of external intervention
after writing the attached contract Ex.PW-1/4. It also indicate that
Petitioner would approach the court of law for mutual divorce and in
the meantime sought police protection. Since Respondent left the
FAO 163/1997 Page 36 of 36
house under adverse and strained circumstances, it cannot be said
that he deserted the Petitioner within the meaning of Section
13(1)(ib) of the Act. Hence, findings of the Trial Court on this issue
are affirmed but, for different reasons.
RELIEF
53. In view of my findings on issue No.1, appeal is partly allowed and
decree and judgment of the Trial Court dated 8th
April, 1997 on this
is hereby set aside. I hereby pass a decree for divorce under Section
13(1) (ia) of the Act.
54. Under the circumstances, parties are left to bear their own costs.
Decree be prepared accordingly. Trial Court record be sent back
along with an attested copy of this order.
ARUNA SURESH
(JUDGE)
AUGUST 20, 2010
vk/sb
http://lobis.nic.in/dhc/AS/judgement/21-08-2010/AS20082010FAO1631997.pdf
