ARLENE UDAY HEBLE Vs. UDAY LAXMAN HEBLE

JUDGEMENT

(1.) THIS is an appeal filed by the wife-Arlene Heble against the Judgment and Decree dated 27th April, 1983 passed by the Family Court, Bombay, in Petition No. A-85/90. The said petition was filed by the respondent/husband - Uday Laxman Heble on January 30, 1990 claiming that the marriage solemnised with the appellant on the 7th August, 1981, at Muscat, be dissolved by a decree of divorce and that the custody of their two minor children : Namrata - born on 11th August, 1983 and Sidharth -born on 15th September, 1986 be given to him. The brief facts leading to the dispute are as under :

(2.) THE appellant-wife has passed her senior Cambridge Examination from a convent school at Deolali, Nasik, whereas the respondent-husband has passed B. A. (Hons) with Economics from Delhi University. The wife is an Anglo Indian Christian and the husband is a Hindu. The husband was a bachelor working in Muscat in 1981. The wife was a divorcee, having two daughters Melissa and Merelyn from her earlier husband. She was working in the same Departmental Store as a sales girl where the husband was working as the Manager. Having come in contact with each other, they were married on the 7th August, 1981 at Muscat under the Foreign Marriage Act, 1969. They lived at Muscat and daughter Namrata was born on 11th August, 1983 at Muscat, whereas the second child Sidharth was born on the 15th September, 1986 at New Delhi. The husband alleges that soon after the marriage the wife started behaving indifferently and exhibited her adamant and stubborn attitude in the day to day routine matters in life and picked up quarrels and used to break and throw costly glasswares. The husband has then narrated certain instances which amount to cruelty in matrimonial law. He alleged that her conduct was such that he cannot reasonably be expected to live with her.

(3.) "cruelty" under matrimonial law consists of conduct so grave and weighty as to lead one to the conclusion that the husband cannot reasonably be expected to live with the wife. It must be more serious than the ordinary wear and tear of married life. The cumulative conduct, taking into consideration all the circumstances and background of the parties, had to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in matrimonial law. While doing so, several factors such as social status, family background, customs, tradition, caste and community, upbringing, public opinion prevailing in the locality etc. will have to be taken into account. As held by the Supreme Court in the case of (Dr. N. G. Dastane v. Mrs. S. Dastane) reported at A. I. R. 1975 Supreme Court 1534, we are not concerned with simple trivialities which can truly be described as a reasonable wear and tear of married life. It is in the context of such trivialities that one can say that the spouses take each other for better or worse. One can only consider the grave and weighty incidents to find what place they occupy on the marriage canvas. Recently in the case of (V. Bhagat v. Mrs. D. Bhagat) reported at A. I. R. 1994 Supreme Court 710, the Supreme Court has observed that mental cruelty can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live together. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together. In case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case.