Divorce under Section 13(1) (ia) of The Hindu Marriage Act, 1955
“Keeping in view the aforesaid
enunciation of law pertaining to mental cruelty, it is to be scrutinized
whether in the case at hand, there has been real mental cruelty or not, but, a
significant one, the said scrutiny can only be done if the findings are
perverse, unreasonable, against the material record or based on
non-consideration of relevant materials. We may note here that the High Court
has, in a singular line, declined to interfere with the judgment and decree of
the courts below stating that they are based on concurrent findings of fact.
The plea of perversity of approach though raised was not adverted to.”
IN THE SUPREME COURT OF INDIA
CIVIL
APPELLATE JURISDICTION
CIVIL
APPEAL NO. 4905 OF 2012
(Arising
out of S.L.P. (Civil) No. 16528 of 2007)
Vishwanath
S/o Sitaram Agrawal .....……..Appellant
Versus
Sau.
Sarla Vishwanath Agrawal ………Respondent
J U D
G M E N T
DIPAK
MISRA, J.
Leave
granted.
2.
The marriage between the appellant and the respondent was solemnized on the
30th of April, 1979 as per the Hindu rites at Akola. In the wedlock, two sons,
namely, Vishal and Rahul, were born on 23.9.1982 and 1.11.1984 respectively. As
the appellant-husband felt that there was total discord in their marital life
and compatibility looked like a mirage, he filed a petition for divorce under
Section 13(1) (ia) of The Hindu Marriage Act, 1955 (for brevity ‘the Act’).
3. It
was the case of the appellant before the court of first instance that the
respondent-wife did not know how to conduct herself as a wife and
daughter-in-law and despite persuasion, her behavioural pattern remained
unchanged. The birth of the children had no impact on her conduct and
everything worsened with the efflux of time. The behaviour of the respondent
with the relatives and guests who used to come to their house was far from
being desirable and, in fact, it exhibited arrogance and lack of culture and,
in a way, endangered the social reputation of the family. That apart, she did
not have the slightest respect for her mother-in-law. Despite the old lady
being a patient of diabetes and hyper tension, it could not invoke any sympathy
from the respondent and hence, there was total absence of care or concern.
4. As
pleaded, in the month of March, 1990, there was a dacoity in the house where
the appellant was staying and, therefore, they shifted to the ginning factory
and eventually, on 17.3.1991, shifted to their own three storeyed building
situate in Gandhi Chowk. Even with the passage of time, instead of bringing
maturity in the attitude of the respondent, it brought a sense of established
selfishness and non-concern for the children. Whim and irrationality reigned in
her day-to-day behaviour and frequent quarrels became a daily affair. As
misfortune would have it, on 23.1.1994, the mother of the appellant died and
the freer atmosphere at home gave immense independence to the respondent to
make the life of the appellant more troublesome. The appellant and his father
were compelled to do their personal work as the entire attention of the
servants was diverted in a compulsive manner towards her. Her immature
perception of life reached its zenith when on certain occasions she used to
hide the keys of the motorcycle and close the gate so that the appellant could
not go to the office of the factory to look after the business. Frequent phone
calls were made to the factory solely for the purpose of abusing and causing mental
agony to the appellant. As asserted, the appellant and his sons used to sleep
on the second floor whereas the respondent used to sleep in the bedroom on the
third floor and their relationship slowly but constantly got estranged. As the
cruelty became intolerable, the appellant visited his in-laws and disclosed the
same but it had no effect on her behaviour. Eventually, on 1.5.1995, the
respondent was left at the house of her parents at Akola and the appellant
stayed in his house with the two sons. As the factual matrix would unveil, on
24.7.1995, a notice issued by her advocate was published in the daily “Lokmat”
stating, inter alia, that the appellant is a womaniser and addicted to liquor.
On 11.10.1995, at 4.00 p.m., the respondent came to the house of the appellant
at Gandhi Chowk and abused the father, the children and the appellant. She, in
fact, created a violent atmosphere in the house as well as in the office by
damaging the property and causing mental torture to the appellant and also to
the family members which compelled the appellant to lodge a complaint at the
Police Station, Chopda. It was alleged that she had brought gundas and certain
women to cause that incident. The said untoward incident brought the A.S.P.,
Jalgaon, to the spot. The publication in the newspaper and the later incident
both occurred during the pendency of the divorce petition and they were
incorporated by way of amendment. On the aforesaid basis, it was contended that
the respondent had treated the appellant with cruelty and hence, he was
entitled to a decree for divorce.
5.
The asseverations made in the petition were controverted by the respondent
stating that she was always respectful and cordial to her in- laws, relatives
and the guests as was expected from a cultured daughter-in- law. They led a
happy married life for 16 years and at no point of time she showed any
arrogance or any behaviour which could remotely suggest any kind of cruelty.
She attended to her mother-in-law all the time with a sense of committed
service and at no point of time there was any dissatisfaction on her part. She
disputed the allegation that she had hidden the keys of the motorcycle or
closed the gate or repeatedly called the appellant on phone at the office to
abuse him or to disturb him in his work. It is her stand that the appellant
owns an oil mill, ginning factory and a petrol pump at Chopda and had sold
certain non-agricultural land by demarcating it into small plots. The
appellant, as alleged, joined the computer classes which were run by one Neeta
Gujarathi in the name and style of “Om Computer Services” and gradually the
appellant started spending much of his time at the computer centre instead of
attending to his own business in the factory. When the respondent became aware
of the intimacy, she took serious objection to the same and therefrom their
relationship became bitter.
6. It
was alleged by the respondent that she was disturbed after knowing about the
involvement of the appellant with another lady despite having an established
family life and two adolescent sons and, therefore, she was compelled to make
phone calls to make enquiries about his whereabouts. As the interference by the
respondent was not appreciated by the appellant, he took the respondent on
1.5.1995 to Akola and left her at her parental house and never cared to bring
her back to her matrimonial home. Her willingness to come back and stay with
the husband and children could not get fructified because of the totally
indifferent attitude shown by the appellant. Her attempts to see the children
in the school became an exercise in futility, as the husband, who is a trustee
of the school, managed to ensure that the boys did not meet her. It was further
alleged that the said Neeta lived with him as his mistress and when the respondent
came to know about it, she went to Chopda to ascertain the same and coming to
know that Neeta was in the house of the appellant, she made an effort to enter
into the house but she was assaulted. This resulted in gathering of people of
the locality and the appellant-husband, as a counter-blast, lodged a complaint
at the police station. The Deputy Superintendent of Police arrived at the scene
and found that Neeta was inside the house and thereafter she was taken back to
her house by the police. Because of the involvement of the appellant with the
said Neeta, he had concocted the story of cruelty and filed the petition for
divorce.
7.
The learned trial Judge framed as many as four issues. The two vital issues
were whether the appellant had been able to prove the alleged cruelty and
whether he was entitled to take disadvantage of his own wrong. The appellant,
in order to prove the allegation of cruelty, examined ten witnesses and on
behalf of the respondent, eight witnesses were examined. The learned trial Judge,
analysing the evidence on record, came to hold that there was conjugal
relationship till 1.5.1995; that there was no substantial material on record to
demonstrate that the respondent had behaved with immaturity immediately after
marriage; that in the absence of cogent evidence, it was difficult to hold that
the respondent had troubled the husband and his parents; that the evidence of
PW-3, Ramesh, was not worthy of acceptance as he is close and an interested
witness; that the allegation that whenever she used to go to her parental home,
she was granting leave to the servants was not acceptable; that the appellant
should have examined some of the servants including the maid servant but for
some reason or other had withheld the best evidence; that the plea that the
respondent was not looking after her mother-in-law who was suffering from
paralysis from 1984 has not been proven; that the allegation that the
respondent was hiding the uniforms of the children and not treating them well
had not been proven because the version of Vishal could not be accepted as he
was staying with the father and, therefore, it was natural for him to speak in
favour of the father; that the stand that the respondent was hiding the keys of
the motorcycle and crumpling the ironed clothes of the appellant did not
constitute mental cruelty as the said acts, being childish, were enjoyed by the
appellant-husband; that the factum of abuse by the respondent on telephone had
not been established by adducing reliable evidence; that the respondent and the
appellant were sleeping on the third floor of the house and hence, she was
sleeping with him in the bedroom and the allegation that he was deprived of
sexual satisfaction from 1991 was unacceptable; that from the witnesses cited
on behalf of the respondent, it was demonstrable that her behaviour towards her
sons and in-laws was extremely good; that even if the allegations made by the
appellant were accepted to have been established to some extent, it could only
be considered as normal wear and tear of the marital life; that the plea of
mental cruelty had not been proven as none of the allegations had been
established by adducing acceptable, consistent and cogent evidence; that the
notice published in the daily “Lokmat” on 28.7.1995 and the later incident
dated 11.10.1995 being incidents subsequent to the filing of the petition for
divorce, the same were not to be taken into consideration.
8.
The learned trial Judge further returned the finding that the appellant was
going to learn computer and taking instructions from Neeta Gujarathi and the
plea that she was engaged as a Computer Operator in his office was not
believable as no appointment letter was produced; that the stand that she was
paid Rs.1200/- per month was not worthy of any credence as she was operating a
computer centre; that from the evidence of the witnesses of the respondent,
namely, RW-3 to RW-5, it was clear that Neeta Gujarathi was living with the
appellant in his house and he had developed intimacy with her and, therefore,
the subsequent events, even if analysed, were to be so done on the said
backdrop; that the allegation that there was a gathering and they were violent
and broke the windows was really not proven by adducing credible evidence; that
the testimony of the witnesses of the respondent clearly reveal that Neeta was
inside the house of the appellant and effort was made to bring her out from the
house and no damage was caused to the property; that on that day, the police
had come in the mid night hours and taken out Neeta from the house of the
appellant and left her at her house; that the notice which was published in
“Lokmat” was to protect the interest of the sons in the property and basically
pertained to the appellant’s alienating the property; that the public notice was
not unfounded or baseless and the question of defaming him and thereby causing
any mental cruelty did not arise; that the allegations made in the application
for grant of interim alimony that the appellant is a womaniser and is addicted
to liquor cannot be considered for the purpose of arriving at the conclusion
that the husband was meted with cruelty; that the allegations made in the
written statement having been found to be truthful, the same could not be said
to have caused any mental cruelty; that the cumulative effect of the evidence
brought on record was that no mental cruelty was ever caused by the respondent;
and that the husband could not take advantage of his own wrong. Being of this
view, the learned trial Judge dismissed the application with costs and also
dismissed the application of the respondent-wife for grant of permanent
alimony.
9.
Grieved by the aforesaid decision, the appellant-husband preferred Civil Appeal
No. 23 of 1999. The first appellate court appreciated the evidence, dealt with
the findings returned by the trial court and eventually came to hold that the
cumulative effect of the evidence and the material brought on record would go a
long way to show that the appellant had failed to make out a case of mental
cruelty to entitle him to obtain a decree for divorce. The aforesaid conclusion
by the appellate court entailed dismissal of the appeal.
10.
Being dissatisfied with the judgment and decree passed by the learned appellate
Judge, the husband preferred Second Appeal No. 683 of 2006 before the High
Court. The learned single Judge of the High Court came to hold that there were
concurrent findings of fact and no substantial question of law was involved.
However, the learned single Judge observed that the sons of the parties had grown
up and have been married; that the parties had no intention to patch up the
matrimonial discord; and that the marriage had been irretrievably broken but
that could not be considered by the High Court but only by the Apex Court under
Article 142 of the Constitution. Expressing the aforesaid view, he did not
admit the appeal and dismissed the same.
11.
We have heard Mr. Arvind V. Sawant, learned senior counsel for the
appellant-husband, and Mr. Vivek C. Solshe, learned counsel for the
respondent-wife.
12. At
the very outset, we would like to make it clear that though the learned single
Judge of the High Court has expressed the view that the parties are at logger
heads and have shown no inclination to patch the matrimonial rupture and the
sons have grown up and got married and with the efflux of time, the
relationship has been further shattered and hence, the marriage is
irretrievably broken and only this Court can grant divorce in exercise of power
under Article 142 of the Constitution, yet we are not going to take recourse to
the same and only address ourselves whether a case for divorce has really been
made out.
13.
At this juncture, we may note with profit that the learned senior counsel for
the appellant exclusively rested his case on the foundation of mental cruelty.
It is his submission that if the evidence of the husband and other witnesses
are scrutinized in an apposite manner along with the stand and stance taken in
the written statement, it will clearly reveal a case of mental cruelty regard
being had to the social status of the appellant. It is urged by him that the
trial court as well as the appellate court have not given any credence to the
evidence of some of the witnesses on the ground that they are interested
witnesses though they are the most natural witnesses who had witnessed the
cruel behaviour meted to the appellant.
14.
It is the submission of the learned senior counsel for the appellant that the
court of first instance as well as the appellate court have failed to take into
consideration certain material aspects of the evidence and the appreciation of
evidence being absolutely perverse, the High Court would have been well advised
to scan and scrutinize the same but it declined to admit the appeal on the
ground that there are concurrent findings of fact. It is canvassed by him that
this Court, in exercise of power under Article 136 of the Constitution, can
dislodge such concurrent findings of facts which are perverse, baseless,
unreasonable and contrary to the material on record.
15.
The learned counsel for the respondent, resisting the aforesaid submissions,
contended that the view expressed by the High Court cannot be found fault with
as the courts below have, at great length, discussed the evidence and
appreciated the same with utmost prudence and objectivity and there is nothing
on record to show that any material part of the evidence has been ignored or
something extraneous to the record has been taken into consideration. It is
highlighted by him that the stand put forth by the wife in her written
statement having been established, the same cannot be construed to have
constituted mental cruelty. Lastly, it is put forth that the appellant has
created a dent in the institution of marriage and made a maladroit effort to
take advantage of his own wrong which should not be allowed.
16.
First, we shall advert to what actually constitutes ‘mental cruelty’ and
whether in the case at hand, the plea of mental cruelty has been established
and thereafter proceed to address whether the courts below have adopted an
approach which is perverse, unreasonable and unsupported by the evidence on
record and totally unacceptable to invite the discretion of this Court in
exercise of power under Article 136 of the Constitution to dislodge the same.
17.
The expression ‘cruelty’ has an inseparable nexus with human conduct or human
behaviour. It is always dependent upon the social strata or the milieu to which
the parties belong, their ways of life, relationship, temperaments and emotions
that have been conditioned by their social status. In
Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan and another[1], a two-Judge Bench approved
the concept of legal cruelty as expounded in Sm. Pancho v. Ram Prasad[2]
wherein it was stated thus: -
“Conception
of legal cruelty undergoes changes according to the changes and advancement of
social concept and standards of living. With the advancement of our social
conceptions, this feature has obtained legislative recognition that a second
marriage is a sufficient ground for separate residence and separate
maintenance. Moreover, to establish legal cruelty, it is not necessary that
physical violence should be used.
Continuous
ill-treatment, cessation of marital intercourse, studied neglect, indifference
on the part of the husband, and an assertion on the part of the husband that
the wife is unchaste are all factors which may undermine the health of a wife.”
It is
apt to note here that the said observations were made while dealing with the
Hindu Married Women’s Right to Separate Residence and Maintenance Act (19 of
1946). This Court, after reproducing the passage, has observed that the learned
Judge has put his finger on the correct aspect and object of mental cruelty.
18. In
Shobha Rani v. Madhukar Reddi[3], while dealing with ‘cruelty’ under
Section 13(1)(ia) of the Act, this Court observed that the said provision does
not define ‘cruelty’ and the same could not be defined. The ‘cruelty’ may be
mental or physical, intentional or unintentional. If it is physical, the court
will have no problem to determine it. It is a question of fact and degree. If
it is mental, the problem presents difficulty. Thereafter, the Bench proceeded
to state as follows: -
“First,
the enquiry must begin as to the nature of the cruel treatment. Second, the
impact of such treatment on the mind of the spouse. Whether it caused reasonable
apprehension that it would be harmful or injurious to live 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. There may,
however, be cases where the conduct complained of itself is bad enough and per
se unlawful or illegal. Then the impact or the 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.”
19.
After so stating, this Court observed about the marked change in life in modern
times and the sea change in matrimonial duties and responsibilities. It has
been observed that when a spouse makes a complaint about treatment of cruelty
by the partner in life or relations, the court should not search for standard
in life. A set of facts stigmatized as cruelty in one case may not be so in
another case. The cruelty alleged may largely depend upon the type of life the
parties are accustomed to or their economic and social conditions. It may also
depend upon their culture and human values to which they attach importance.
Their Lordships referred to the observations made in Sheldon v. Sheldon[4]
wherein Lord Denning stated, “the categories of cruelty are not closed”.
Thereafter, the Bench proceeded to state thus: -
“Each
case may be different. We deal with the conduct of human beings who are not
generally similar. Among the human beings there is no limit to the kind of
conduct which may constitute cruelty. New type of cruelty may crop up in any
case depending upon the human behaviour, capacity or incapability to tolerate
the conduct complained of. Such is the wonderful (sic) realm of cruelty.
These
preliminary observations are intended to emphasise that the court in
matrimonial cases is not concerned with ideals in family life. The court has
only to understand the spouses concerned as nature made them, and consider
their particular grievance. As Lord Ried observed in Gollins v. Gollins[5] :
In matrimonial
affairs we are not dealing with
objective
standards, it is not a matrimonial offence to fall below the standard of the
reasonable man (or the reasonable woman). We are dealing with this man or this
woman.”
20. In
V. Bhagat v. D. Bhagat (Mrs.)[6], a two-Judge Bench referred to the
amendment that had taken place in Sections 10 and 13(1)(ia) after the Hindu
Marriage Laws (Amendment) Act, 1976 and proceeded to hold that the earlier
requirement that such cruelty has caused a reasonable apprehension in the mind
of a spouse that it would be harmful or injurious for him/her to live with the
other one is no longer the requirement. Thereafter, this Court proceeded to
deal with what constitutes mental cruelty as contemplated in Section 13(1)(ia)
and observed that mental cruelty in the said provision can broadly be defined
as that conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with the other.
To put it differently, the 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 was further observed,
while arriving at such conclusion, that 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. What is
cruelty in one case may not amount to cruelty in another case and it has to be
determined in each case keeping in view the facts and circumstances of that
case. That apart, the accusations and allegations have to be scrutinized in the
context in which they are made. Be it noted, in the said case, this Court
quoted extensively from the allegations made in the written statement and the
evidence brought on record and came to hold that the said allegations and
counter allegations were not in the realm of ordinary plea of defence and did
amount to mental cruelty.
21. In
Praveen Mehta v. Inderjit Mehta[7], it has been held that mental
cruelty is a state of mind and feeling with one of the spouses due to behaviour
or behavioural pattern by the other. Mental cruelty cannot be established by
direct evidence and it is necessarily a matter of inference to be drawn from
the facts and circumstances of the case. A feeling of anguish, disappointment,
and frustration in one spouse caused by the conduct of the other can only be
appreciated on assessing the attending facts and circumstances in which the two
partners of matrimonial life have been living. The facts and circumstances are
to be assessed emerging from the evidence on record and thereafter, a fair
inference has to be drawn whether the petitioner in the divorce petition has
been subjected to mental cruelty due to the conduct of the other.
22. In
Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate[8], it has
been opined that a conscious and deliberate statement levelled with pungency
and that too placed on record, through the written statement, cannot be so
lightly ignored or brushed aside.
23. In
A. Jayachandra v. Aneel Kaur[9], it has been ruled that the question
of mental cruelty has to be considered in the light of the norms of marital
ties of the particular society to which the parties belong, their social
values, status and environment in which they live. If from the conduct of the
spouse, it is established and/or an inference can legitimately be 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 the same would amount
to cruelty. While dealing with the concept of mental cruelty, enquiry must begin
as to the nature of cruel treatment and the impact of such treatment in the
mind of the spouse. It has to be seen whether the conduct is such that no
reasonable person would tolerate it.
24. In Vinita
Saxena v. Pankaj Pandit[10], it has been ruled that as to what
constitutes mental cruelty for the purposes of Section 13(1)(ia) will not
depend upon the numerical count of such incident or only on the continuous
course of such conduct but one has to really go by the intensity, gravity and
stigmatic impact of it when meted out even once and the deleterious effect of
it on the mental attitude necessary for maintaining a conducive matrimonial
home.
25. In
Samar Ghosh v. Jaya Ghosh[11], this Court, after surveying the
previous decisions and referring to the concept of cruelty, which includes
mental cruelty, in English, American, Canadian and Australian cases, has
observed that the human mind is extremely complex and human behaviour is
equally complicated. Similarly, human ingenuity has no bound, therefore, to
assimilate the entire human behaviour in one definition is almost impossible.
What is cruelty in one case may not amount to cruelty in the other case. The
concept of cruelty differs from person to person depending upon his upbringing,
level of sensitivity, educational, family and cultural background, financial
position, social status, customs, traditions, religious belief, human values
and their value system. Apart from this, the concept of mental cruelty cannot
remain static; it is bound to change with the passage of time, impact of modern
culture through print and electronic media and value system, etc. etc. What may
be mental cruelty now may not remain mental cruelty after a passage of time or
vice versa. There can never be any straitjacket formula or fixed parameters for
determining mental cruelty in matrimonial matters. The prudent and appropriate
way to adjudicate the case would be to evaluate it on its peculiar facts and
circumstances.
26. In
Suman Kapur v. Sudhir Kapur[12], after referring to various
decisions in the field, this Court took note of the fact that the wife had
neglected to carry out the matrimonial obligations and further, during the
pendency of the mediation proceeding, had sent a notice to the husband through
her advocate alleging that he had another wife in USA whose identity was
concealed. The said allegation was based on the fact that in his income-tax
return, the husband mentioned the “Social Security Number” of his wife which
did not belong to the wife, but to an American lady. The husband offered an
explanation that it was merely a typographical error and nothing else. The High
Court had observed that taking undue advantage of the error in the “Social
Security Number”, the wife had gone to the extent of making serious allegation
that the husband had married an American woman whose “Social Security Number”
was wrongly typed in the income-tax return of the husband. This fact also
weighed with this Court and was treated that the entire conduct of the wife did
tantamount to mental cruelty.
27.
Keeping in view the aforesaid enunciation of law pertaining to mental cruelty,
it is to be scrutinized whether in the case at hand, there has been real mental
cruelty or not, but, a significant one, the said scrutiny can only be done if
the findings are perverse, unreasonable, against the material record or based
on non-consideration of relevant materials. We may note here that the High
Court has, in a singular line, declined to interfere with the judgment and
decree of the courts below stating that they are based on concurrent findings
of fact. The plea of perversity of approach though raised was not adverted to.
28.
It is worth noting that this Court, in Kulwant
Kaur v. Gurdial Singh Mann (dead)
by L.Rs. and others[13], has held that while it is true that in a second
appeal, a finding of fact, even if erroneous, will generally not be disturbed
but where it is found that the findings stand vitiated on wrong test and on the
basis of assumptions and conjectures and resultantly there is an element of
perversity involved therein, the High Court will be within its jurisdiction to
deal with the issue. An issue pertaining to perversity comes within the ambit
of substantial question of law. Similar view has been stated in Govindaraju
v. Mariamman[14].
29. In
Major Singh v. Rattan Singh (Dead) by
LRs and others[15], it has been observed that when the courts below had
rejected and disbelieved the evidence on unacceptable grounds, it is the duty
of the High Court to consider whether the reasons given by the courts below are
sustainable in law while hearing an appeal under Section 100 of the Code of
Civil Procedure.
30. In
Vidhyadhar v. Manikrao and another[16],
it has been ruled that the High Court in a second appeal should not disturb the
concurrent findings of fact unless it is shown that the findings recorded by
the courts below are perverse being based on no evidence or that on the
evidence on record, no reasonable person could have come to that conclusion. We
may note here that solely because another view is possible on the basis of the
evidence, the High Court would not be entitled to exercise the jurisdiction
under Section 100 of the Code of Civil Procedure. This view of ours has been
fortified by the decision of this Court in Abdul
Raheem v. Karnataka Electricity Board & Ors. [17].
31.
Having stated the law relating to mental cruelty and the dictum of this Court
in respect of the jurisdiction of the High Court where concurrent findings of
fact are assailed, as advised at present, we will scan the evidence whether the
High Court has failed to exercise the jurisdiction conferred on it despite the
plea of perversity being raised. Any finding which is not supported by evidence
or inferences is drawn in a stretched and unacceptable manner can be said to be
perverse. This Court in exercise of power under Article 136 of the Constitution
can interfere with concurrent findings of fact, if the conclusions recorded by
the High Court are manifestly perverse and unsupported by the evidence on
record. It has been so held in Alamelu and another v. State, Represented by
Inspector of Police[18] and Heinz India Pvt. Ltd. & Anr. v. State of
U.P. & Ors.[19]
32.
Presently, to the core issue, viz, whether the appellant-husband had made out a
case for mental cruelty to entitle him to get a decree for divorce. At this
juncture, we may unhesitantly state that the trial court as well as the first
appellate court have disbelieved the evidence of most of the witnesses cited on
behalf of the husband on the ground that they are interested witnesses. In a
matrimonial dispute, it would be inappropriate to expect outsiders to come and
depose. The family members and sometimes the relatives, friends and neighbours
are the most natural witnesses. The veracity of the testimony is to be tested
on objective parameters and not to be thrown overboard on the ground that the
witnesses are related to either of the spouse. Exception has been taken by the
courts below that the servants of the house should have been examined and that
amounts to suppression of the best possible evidence. That apart, the
allegations made in the written statement, the dismissal of the case instituted
by the wife under Section 494 of the Indian Penal Code, the non-judging of the
material regard being had to the social status, the mental make-up, the milieu
and the rejection of subsequent events on the count that they are subsequent to
the filing of the petition for divorce and also giving flimsy reasons not to
place reliance on the same, we are disposed to think, deserve to be tested on
the anvil of “perversity of approach”. Quite apart from the above, a
significant question that emerges is whether the reasons ascribed by the courts
below that the allegations made in the written statement alleging extra marital
affair of the appellant-husband with Neeta Gujarathi has been established and,
therefore, it would not constitute mental cruelty are perverse and unacceptable
or justified on the basis of the evidence brought on record. These are the
aspects which need to be scrutinized and appositely delved into.
33.
The appellant-husband, examining himself as PW-1, has categorically stated that
the wife used to hide the pressed clothes while he was getting ready to go to
the factory. Sometimes she used to crumple the ironed clothes and hide the keys
of the motorcycle or close the main gate. In the cross-examination, it is
clearly stated that the wife was crumpling the ironed clothes, hiding the keys
of the motorcycle and locking the gate to trouble him and the said incidents
were taking place for a long time. This being the evidence on record, we are at
a loss to find that the courts below could record a finding that the appellant
used to enjoy the childish and fanciful behaviour of the wife pertaining to the
aforesaid aspect. This finding is definitely based on no evidence. Such a
conclusion cannot be reached even by inference. If we allow ourselves to say
so, even surmises and conjectures would not permit such a finding to be
recorded. It is apt to note here that it does not require Solomon’s wisdom to
understand the embarrassment and harassment that might have been felt by the
husband. The level of disappointment on his part can be well visualised like a
moon in a cloudless sky.
34.
Now we shall advert to the allegation made in the written statement. The
respondent-wife had made the allegation that the husband had an illicit
relationship with Neeta Gujarathi. The learned trial Judge has opined that the
said allegation having been proved cannot be treated to have caused mental
cruelty. He has referred to various authorities of many High Courts. The heart
of the matter is whether such an allegation has actually been proven by
adducing acceptable evidence. It is worth noting that the respondent had filed
a complaint, RCC No. 91/95, under Section 494 of the Indian Penal Code against
the husband. He was discharged in the said case. The said order has gone
unassailed. The learned trial Judge has expressed the view that Neeta Gujarathi
was having a relationship with the husband on the basis that though the husband
had admitted that she was working in his office yet he had not produced any
appointment letter to show that she was appointed as a computer operator. The trial
Judge has relied on the evidence of the wife. The wife in her evidence has
stated in an extremely bald manner that whenever she had telephoned to the
office in the factory, the husband was not there and further that the presence
of Neeta Gujarathi was not liked by her in-laws and the elder son Vishal. On a
careful reading of the judgment of the trial court, it is demonstrable that it
has been persuaded to return such a finding on the basis of the incident that
took place on 11.10.1995. It is worth noting that the wife, who examined
herself as RW-1, stated in her evidence that Vishal was deposing against her as
the appellant had given him a scooter. The learned trial Judge has given
immense credence to the version of the social worker who, on the date of the
incident, had come to the house of the appellant where a large crowd had
gathered and has deposed that she had seen Neeta going and coming out of the
house. The evidence of the wife, when studiedly scrutinized, would show that
there was more of suspicion than any kind of truth in it. As has been stated
earlier, the respondent had made an allegation that her son was influenced by
the appellant-husband. The learned trial Judge as well as the appellate court
have accepted the same. It is germane to note that Vishal, the elder son, was
approximately 16 years of age at the time of examination in court. There is
remotely no suggestion to the said witness that when Neeta Gujarati used to go
to the house, his grandfather expressed any kind of disapproval. Thus, the
whole thing seems to have rested on the incident of 11.10.1995. On that day, as
the material on record would show, at 4.00 p.m., the wife arrived at the house
of the husband. She has admitted that she wanted to see her father- in-law who
was not keeping well. After she went in, her father-in-law got up from the
chair and went upstairs. She was not permitted to go upstairs. It is testified
by her that her father-in-law came down and slapped her. She has deposed about
the gathering of people and publication in the newspapers about the incident.
Vishal, PW-5, has stated that the mother had pushed the grandfather from the
chair. The truthfulness of the said aspect need not be dwelled upon. The fact
remains that the testimony of the wife that the father-in-law did not like the
visit of Neeta does not appear to be true. Had it been so, he would not have
behaved in the manner as deposed by the wife. That apart, common sense does not
give consent to the theory that both, the father of the husband and his son, Vishal,
abandoned normal perception of life and acceded to the illicit intimacy with
Neeta. It is interesting to note that she has deposed that it was published in
the papers that the daughter-in-law was slapped by the father- in-law and Neeta
Gujarathi was recovered from the house but eventually the police lodged a case
against the husband, the father-in-law and other relatives under Section 498A
of the Indian Penal Code. We really fail to fathom how from this incident and
some cryptic evidence on record, it can be concluded that the respondent-wife
had established that the husband had an extra marital relationship with Neeta
Gujarathi. That apart, in the application for grant of interim maintenance, she
had pleaded that the husband was a womaniser and drunkard. This pleading was
wholly unwarranted and, in fact, amounts to a deliberate assault on the
character. Thus, we have no scintilla of doubt that the uncalled for
allegations are bound to create mental agony and anguish in the mind of the
husband.
35.
Another aspect needs to be taken note of. She had made allegation about the
demand of dowry. RCC No. 133/95 was instituted under Section 498A of the Indian
Penal Code against the husband, father-in-law and other relatives. They have
been acquitted in that case. The said decision of acquittal has not been
assailed before the higher forum. Hence, the allegation on this count was
incorrect and untruthful and it can unhesitatingly be stated that such an act
creates mental trauma in the mind of the husband as no one would like to face a
criminal proceeding of this nature on baseless and untruthful allegations.
36.
Presently to the subsequent events. The courts below have opined that the
publication of notice in the daily “Lokmat” and the occurrence that took place
on 11.10.1995 could not be considered as the said events occurred after filing
of the petition for divorce. Thereafter, the courts below have proceeded to
deal with the effect of the said events on the assumption that they can be
taken into consideration. As far as the first incident is concerned, a view has
been expressed that the notice was published by the wife to safeguard the
interests of the children, and the second one was a reaction on the part of the
wife relating to the relationship of the husband with Neeta Gujrathi. We have
already referred to the second incident and expressed the view that the said
incident does not establish that there was an extra marital relationship
between Neeta and the appellant. We have referred to the said incident as we are
of the considered opinion that the subsequent events can be taken into
consideration. In this context, we may profitably refer to the observations
made by a three-Judge Bench in the case of A. Jayachandra (supra) :-
“The
matter can be looked at from another angle. If acts subsequent to the filing of
the divorce petition can be looked into to infer condonation of the
aberrations, acts subsequent to the filing of the petition can be taken note of
to show a pattern in the behaviour and conduct.”
37.
We may also usefully refer to the observations made in Suman Kapur (supra)
wherein the wife had made a maladroit effort to take advantage of a
typographical error in the written statement and issued a notice to the husband
alleging that he had another wife in USA. Thus, this Court has expressed the
opinion that the subsequent events can be considered.
38.
Keeping in view the aforesaid pronouncement of law, we shall first appreciate
the impact of the notice published in the “Lokmat”. The relevant part of the
said notice, as published in the newspaper, reads as follows: -
“Shri
Vishwanath Sitaram Agrawal is having vices of womanizing, drinking liquor and
other bad habits. He is having monthly income of Rs.10 lacs, but due to several
vices, he is short of fund. Therefore, he has started selling the property. He
has sold some properties. My client has tried to make him understand which is
of no use and on the contrary, he has beaten my client very badly and has
driven her away and dropped her to Akola at her parent’s house.
In
the property of Shri Vishwanath Sitaram Agrawal my client and her two sons are
having shares in the capacity of members of joint family and Shri Vishwanath
Sitaram Agrawal has no right to dispose of the property on any ground.”
Immense
emphasis has been given on the fact that after publication of the notice, the
husband had filed a caveat in the court. The factual matrix would reveal that
the husband comes from a respectable family engaged in business. At the time of
publication of the notice, the sons were quite grown up. The respondent-wife
did not bother to think what impact it would have on the reputation of the
husband and what mental discomfort it would cause. It is manifest from the
material on record that the children were staying with the father. They were
studying in the school and the father was taking care of everything. Such a
publication in the newspaper having good circulation can cause trauma, agony
and anguish in the mind of any reasonable man. The explanation given by the
wife to the effect that she wanted to protect the interests of the children, as
we perceive, is absolutely incredible and implausible. The filing of a caveat
is wholly inconsequential. In fact, it can decidedly be said that it was mala
fide and the motive was to demolish the reputation of the husband in the
society by naming him as a womaniser, drunkard and a man of bad habits.
39.
At this stage, we may fruitfully reminisce a poignant passage from N.G.
Dastane v. S. Dastane[20] wherein Chandrachud, J. (as his Lordship
then was) observed thus: -
“The
court has to deal, not with an ideal husband and an ideal wife (assuming any
such exist) but with the particular man and woman before it. The ideal couple
or a near-ideal one will probably have no occasion to go to a matrimonial court
for, even if they may not be able to drown their differences, their ideal
attitudes may help them overlook or gloss over mutual faults and failures.”
40.
Regard being had to the aforesaid, we have to evaluate the instances. In our
considered opinion, a normal reasonable man is bound to feel the sting and the
pungency. The conduct and circumstances make it graphically clear that the
respondent-wife had really humiliated him and caused mental cruelty. Her
conduct clearly exposits that it has resulted in causing agony and anguish in the
mind of the husband. She had publicised in the newspapers that he was a
womaniser and a drunkard. She had made wild allegations about his character.
She had made an effort to prosecute him in criminal litigations which she had
failed to prove. The feeling of deep anguish, disappointment, agony and
frustration of the husband is obvious. It can be stated with certitude that the
cumulative effect of the evidence brought on record clearly establish a
sustained attitude of causing humiliation and calculated torture on the part of
the wife to make the life of the husband miserable. The husband felt humiliated
both in private and public life. Indubitably, it created a dent in his
reputation which is not only the salt of life, but also the purest treasure and
the most precious perfume of life. It is extremely delicate and a cherished
value this side of the grave. It is a revenue generator for the present as well
as for the posterity. Thus analysed, it would not be out of place to state that
his brain and the bones must have felt the chill of humiliation. The dreams
sweetly grafted with sanguine fondness with the passage of time reached the
Everstine disaster, possibly, with a vow not to melt. The cathartic effect
looked like a distant mirage. The cruel behaviour of the wife has frozen the
emotions and snuffed out the bright candle of feeling of the husband because he
has been treated as an unperson. Thus, analysed, it is abundantly clear that
with this mental pain, agony and suffering, the husband cannot be asked to put
up with the conduct of the wife and to continue to live with her. Therefore, he
is entitled to a decree for divorce.
41.
Presently, we shall deal with the aspect pertaining to the grant of permanent
alimony. The court of first instance has rejected the application filed by the
respondent-wife as no decree for divorce was granted and there was no severance
of marital status. We refrain from commenting on the said view as we have
opined that the husband is entitled to a decree for divorce. Permanent alimony
is to be granted taking into consideration the social status, the conduct of
the parties, the way of living of the spouse and such other ancillary aspects.
During the course of hearing of the matter, we have heard the learned counsel
for the parties on this aspect. After taking instructions from the respective
parties, they have addressed us. The learned senior counsel for the appellant
has submitted that till 21.2.2012, an amount of Rs.17,60,000/- has been paid
towards maintenance to the wife as directed by the courts below and hence, that
should be deducted from the amount to be fixed. He has further submitted that
the permanent alimony should be fixed at Rs.25 lacs. The learned counsel for
the respondent, while insisting for affirmance of the decisions of the High
Court as well as by the courts below, has submitted that the amount that has
already been paid should not be taken into consideration as the same has been
paid within a span of number of years and the deduction would affect the future
sustenance. He has emphasised on the income of the husband, the progress in the
business, the inflation in the cost of living and the way of life the
respondent is expected to lead. He has also canvassed that the age factor and
the medical aid and assistance that are likely to be needed should be
considered and the permanent alimony should be fixed at Rs.75 lacs.
42.
In our considered opinion, the amount that has already been paid to the
respondent-wife towards alimony is to be ignored as the same had been paid by
virtue of the interim orders passed by the courts. It is not expected that the
respondent-wife has sustained herself without spending the said money. Keeping
in view the totality of the circumstances and the social strata from which the
parties come from and regard being had to the business prospects of the
appellant, permanent alimony of Rs.50 lacs (rupees fifty lacs only) should be
fixed and, accordingly, we so do. The said amount of Rs.50 lacs (rupees fifty
lacs only) shall be deposited by way of bank draft before the trial court
within a period of four months and the same shall be handed over to the
respondent-wife on proper identification.
43.
Consequently, the appeal is allowed, the judgments and decrees of the courts
below are set aside and a decree for divorce in favour of the appellant is
granted. Further, the husband shall pay Rs.50 lacs (rupees fifty lacs only)
towards permanent alimony to the wife in the manner as directed hereinabove.
The parties shall bear their respective costs.
............................................J.
[Deepak
Verma]
............................................J.
[Dipak
Misra]
New
Delhi;
Sourcess: with Thanks to :http://www.indiankanoon.org/doc/180502059/
