MADHU PAREEK Vs. MAHESH KUMAR

JUDGEMENT

(1.) THE differences and the distances between the spouses have brought them before this Court. the appellant wife is challenging the judgment dated 22. 4. 1999, passed by the Judge Family Court No. 1, Jaipur whereby the learned Judge has granted divorce in favour of the husband on the grounds of cruelty and desertion of the wife.

(2.) THE brief facts of the case are that the appellant and the respondent were married on 9. 5. 1985 at Jaipur according to the Hindu rites and customs. Out of the wedlock, a daughter, Richa, was born on 30. 1. 1986. According to the respondent, the appellant was too proud of her high education, of her higher economic status. Just three months after their marriage, she started behaving cruelly towards his parents and him. She would call her mother-in-law names; she would refuse to do household chores. She kept on forcing the respondent to leave his parents and to take up another house. Without any rhyme or reason, on 3. 6. 1986, she left the respondent. She did not return to the matrimonial home for months. On 28. 12. 1986, the respondent fell ill and was hospitalized. Despite the fact that the appellant was informed about his hospitalization, she did not attend to him till 2. 1. 1987, i. e. after four days. He further alleged that from 2. 1. 1987 till 8. 6. 1987, both of them resumed their cohabitation. However, even during this period, the appellant continued with her cruelty towards the family members. She would intentionally put salt in the tea, would intentionally burn the "chappatis" an would intentionally quarrel with the family members. On 10. 4. 1987, the appellant left the school and went away. She neither came back to the matrimonial home, nor went to her parental place. When the respondent asked her about her whereabouts, she gave evasive answers. She continued to spend nights at other places without any explanations. Thus, her behaviour caused mental cruelty to him. On 9. 6. 1987she left the matrimonial home. Although the respondent tried to bring her back, although she was invited to attend marriages in the respondent's family, she refused to come back to the matrimonial home. Eventually, he filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 (henceforth to be referred to as `the Act', for short) on the grounds of cruelty and desertion.

(3.) THE Hon'ble Supreme Court in the case of A. Jayachandra vs. Annel Kaur ( (2005) 2 SCC 22) = (RLW 2005 (2) SC 196) has elaborately dealt with the concept of cruelty. THE Apex Court held as under: " THE expression `cruelty' has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage maybe defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. THE question of mental cruelty has to be considered in the light of the normal of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. THE concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. THErefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. THE expression "cruelty" has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and of one, which is adversely affecting the other. the cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the inquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to life with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. THEn the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. (See Shobha Rani vs. Madhukar Reddi. ). 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. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. THE Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological 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 the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day to day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent. THE foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. THE courts do not have to deal with ideal husbands and ideal wives. It has to deal with a particular man and woman before it. It ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See N. G. Dastane (Dr.) V. S. Dastane.)"