Is it cruelty by wife...?
shelly
(Querist) 27 May 2012
This query is : Resolved
sir i want ur favour om my client shilpa....case is:-
ajay and shilpa got marriedin the year 2000.At the time of marriage ajay was working at kangra and getting rs 4500/month.Whereas shilpa was working with MNC and was earning rs 7000/month and other perks at the same place.subsequently ajay got a lucrative job in delhi with his sallery rs 10000.after joining new job he requested his wife to resign her job and move over to delhi but the request was refused by shilpa on one pretext or other.she thought it was necesseryfor her to continue the job as the income from the husbands sallery is not suffecient to maintain the family.further dispite marriage subsisting in the year 2000,the couple was not having a child.yhough shilga earliar at her insistance and iniatitave had got her pregnency terminated thrice while ajay was anxious for child.shilpa was of the openion that in the early year of her carrer and lookig to the nature of her job she may b not able to look after her child properly.....being upset with the tern of events in the martial life.ajay files a petitionu/s 9 of HMA and alternatevily praps for divorce on the ground of CRUELTY. Shilpa contends that she has the right of equality under art 14 of the constitution to continue her job. Further to have a child at the instance of her husband will be voilative of acr 21 of the constitution,right to personal liberty.
shelly
(Querist) 27 May 2012
plz sir tell me
ajay sethi
(Expert) 27 May 2012
if wife termiantes pregenancy thrice without consent of husband it would amount to cruelty
ajay sethi
(Expert) 27 May 2012
Abortion without husband's consent is cruelty by wife: Court
PTI Nov 12, 2007, 05.58pm IST
NEW DELHI: Observing that a woman's decision to undergo an abortion without her husband's consent amounts to cruelty, a court here has granted divorce to a man who alleged his "figure conscious" wife did not inform him before terminating her pregnancies.
The court admitted Kishan Chand's divorce plea noting that his wife Kanta Devi had treated him with cruelty by not sharing her abortion plans with him, allegedly abusing him and her in-laws and filing harassment complaints against them.
The behaviour of the respondent (wife) coupled with other facts like getting abortions, taking away money and jewellery of the petitioner's parents and lodging of criminal complaints amounts to cruelty," Additional District Judge Atul Kumar Garg said, in a recent order.
Passing a decree of divorce in favour of the petitioner, the court observed that the marriage between them had irretrievably broken down and it was very difficult to restore the conjugal tie in view of the behaviour of his wife.
Chand had successfully pieced together the incidents and circumstances that went on to establish that he, along with his parents, was ill-treated by his wife since their marriage in 1993, it said.
In her defence, Devi claimed that charges levelled by her husband were concocted and she was willing to return to her matrimonial home despite living separately for over eight years.
The court, however, noted that Chand had proved his claims regarding her unilateral decision of abortions, frequent feuds over trivial matters and other instances of misconduct by her and ordered for dissolution of the marriage.
Multifarious criminal proceedings initiated by Devi against Chand and his parents further went on to corroborate the husband's contentions, it said.
ajay sethi
(Expert) 27 May 2012
Supreme Court of India
Suman Kapur vs Sudhir Kapur on 7 November, 2008
Author: C Thakker
Bench: C.K. Thakker, D.K. Jain
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6582 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 10907 OF 2007
SUMAN KAPUR ... APPELLANT
VERSUS
SUDHIR KAPUR ... RESPONDENT
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed by the
appellant-wife being aggrieved and dissatisfied
with the decree of divorce dated August 07,
2004 passed by the Additional District Judge,
Delhi in HMA No. 322/2001/96 and confirmed by
the High Court of Delhi on January 29, 2007 in
Matrimonial Appeal No. 62 of 2004. 2
3. The facts in nutshell are that the
appellant Suman Kapur is the wife and
respondent Sudhir Kapur is the husband. The
matrimonial alliance was entered into between
the parties as per Hindu rites and rituals in
Delhi on March 04, 1984. It was the case of
the appellant that both the parties were
friends from childhood and were knowing each
other since 1966. They had also studied
together in the same school. They were very
close since 1974 and after a friendship of more
than a decade, they decided to marry. The
marriage was inter-caste marriage. Though
initially parents of both the parties were
opposed to the marriage, subsequently, they
consented. The parties have no issue from the
said wedlock.
4. The appellant has a brilliant academic
record and has been the recipient of the
prestigious Lalor Foundation Fellowship of
United States of America (USA), offered to
young scientists for outstanding performance in 3
the area of research. According to her, at the
time of her marriage, she was in employment
with the Department of Bio-chemistry in the All
India Institute of Medical Sciences (AIIMS) and
was also pursuing her Ph.D.
5. It is the case of the appellant that
she conceived for the first time in 1984,
within a period of about one month of the
marriage, but on account of being exposed to
harmful radiations as a part of lab work of her
Ph.D. thesis, she decided to terminate the
pregnancy. The appellant asserted that it was
done with the knowledge and consent of the
respondent-husband.
6. Again, in 1985, she conceived. But
even that pregnancy was required to be
terminated on the ground of an acute kidney
infection for which she had to undergo an IVP,
which entailed six abdominal X-rays and
radiometric urinary reflect test with
radioactive drinking dye. She claimed that
even the second pregnancy was terminated with 4
the knowledge and consent of the respondent-
husband.
7. According to the appellant, third time
she became pregnant in 1989, but she suffered
natural abortion on account of having a
congenitally small uterus and thus prone to
recurrent miscarriages.
8. It is the case of the appellant that
though she was well-placed and having good job
in AIIMS in Delhi, only with a view to
accompany her husband who was serving in
Bombay, she left the job. In 1988, the parties
together left for USA. The appellant was
awarded Lalor Foundation Fellowship in USA for
which she had to move to Kansas city and could
not join the respondent-husband at the place of
his work.
9. The case of the respondent-husband, on
the other hand was that since solemnization of
marriage between the parties, the attitude,
conduct and behaviour of the appellant-wife
towards the respondent as well as his family 5
members was indignant and rude. It was alleged
by him that first pregnancy was terminated in
1984 by the appellant-wife without consent and
even without knowledge of the respondent. Same
thing was repeated at the time of termination
of second pregnancy in 1985. He was kept in
complete dark about the so-called miscarriage
by the appellant-wife in 1989. The respondent
was thus very much aggrieved since he was
denied the joy of feeling of fatherhood and the
parents of the respondent were also deprived of
grand-parenthood of a new arrival. It was also
contended by the respondent that the attitude
of the appellant-wife towards her in-laws was
humiliating. Several instances were cited in
support of the said conduct and behaviour by
the husband.
10. The respondent-husband, therefore,
filed HMA No. 322/2001/96 in the Court of
Additional District Judge, Delhi under Section
13(1)(ia) and (ib) of the Hindu Marriage Act,
1955 (hereinafter referred to as `the Act') for 6
getting divorce from the appellant-wife. Two
grounds were taken by the respondent-husband in
the said petition, i.e. (i) cruelty and (ii)
desertion. It was alleged by the husband that
the wife was all throughout conscious, mindful
and worried of one thing and that was her
career. In view of her thinking only in one
direction, she deprived the respondent-husband
of conjugal rights and matrimonial obligations.
She also treated the family members of the
respondent-husband with cruelty. She, without
consent or even knowledge of the respondent-
husband, got her pregnancy terminated twice in
1984 as well as in 1985 and falsely stated that
there was natural miscarriage at the time of
third pregnancy in 1989. At no point of time,
she had taken consent of the husband nor even
she had informed about the termination of
pregnancy or about miscarriage to the
respondent. At several occasions, she had
stated that she was not interested at all in
living with the respondent-husband and to 7
perform marital obligations. She had made it
explicitly clear to the respondent-husband that
she was not willing to be a mother at the cost
of her career. She had specifically told the
respondent-husband that if he was very much
interested and eager to be a father and his
mother (respondent's mother) wanted to be a
grand-mother, he could enter into marriage tie
with any other woman, but the appellant-wife
would not give up her career. She had also
stated that she had no objection if the
respondent adopts a child which action would
not adversely affect her career. She had issued
a notice to the respondent-husband that it
would be better that they would peacefully
separate from each other so that the
respondent-husband may be able to fulfil the
wishes of his parents and the appellant-wife
may pursue her future career. The respondent-
husband, therefore, submitted that the case
attracted both the provisions, viz. (i) cruelty
on the part of the wife under clause (ia) of 8
sub-section (1) of Section 13 and (ii)
desertion of matrimonial home and refusal to
perform marital obligations falling under
clause (ib) of sub-section (1) of Section 13 of
the Act. On both the grounds, the respondent-
husband was entitled to a decree of divorce.
11. The appellant-wife in her objections
denied the allegations of the husband.
According to her, she was doing her best to
please her husband as well as her in-laws.
Precisely for that purpose, she had left her
service in Delhi and joined the husband. It
was admitted that she was in service and was
also interested in career as she was well-
educated lady and wanted to contribute to the
society. But that did not mean that she was
not performing her marital obligations. It was
an admitted fact that immediately after her
marriage, she conceived and she was very happy
about it. Unfortunately, however, for the
circumstances beyond her control, she was
compelled to get the pregnancy terminated with 9
the knowledge and consent of her husband. The
same thing was repeated in 1985. In 1989, there
was natural miscarriage. She also contended
that she had to go to USA for receiving
prestigious award of Lalor Foundation
Fellowship. According to her, instead of being
happy about the progress of the wife, the
husband had initiated the present proceedings
with jealousy and hence, he was not entitled to
a decree of divorce. Even otherwise, there was
no cruelty on her part. According to the wife,
during regular intervals, the parties used to
stay together and the appellant had never
refused to perform her matrimonial obligations
or even had shown her intention to deprive the
husband of conjugal rights. It was, therefore,
submitted that the husband was not entitled to
the relief sought by him and the petition was
liable to be dismissed.
12. The trial Court after hearing the
parties held that the husband was not entitled
to a decree of divorce on the ground that the 1
wife had deserted the husband for a continuous
period of not less than two years immediately
preceding the presentation of the petition.
He, however, held that it was fully established
by the husband that there was cruelty on the
part of the wife. The wife without the
knowledge and consent of the husband got her
pregnancy terminated twice - firstly in 1984
and secondly in 1985. The husband was also not
informed about natural miscarriage in 1989. A
finding was also recorded by the trial Court
that the wife was not ready and willing to
perform matrimonial obligations and she always
attempted to stay away from her husband by
depriving conjugal rights of the husband. It
was, therefore, a case of mental cruelty. The
trial Court also referred to several letters
written by wife to the husband, and notice
issued by the wife through an advocate which
went to show that she was not interested in
performing marital obligations and continuing
marital relations with the husband. The Court 1
also relied upon various entries made by the
appellant-wife in her diary which suggested
that all throughout she was worrying about her
future and her career. For wife, according to
the trial Court, her career was the most
important factor and not matrimonial
obligations. The trial Court, therefore, held
that the case was covered by mental cruelty
which was shown by the wife towards the husband
and the husband was entitled to a decree of
divorce on that ground.
13. Being aggrieved by the decree passed
by the trial Court, the wife preferred an
appeal in the High Court of Delhi. The High
Court again appreciated the evidence on record
and confirmed the decree of divorce passed by
the trial Court. The High Court, however, held
that it was not necessary for the Court to
consider mental cruelty so far as termination
of pregnancy was concerned, since in the
opinion of the High Court, even otherwise from
the letters and entries in diary, it was proved 1
that there was mental cruelty on the part of
the wife. Accordingly, the decree of divorce
passed by the trial Court was confirmed by the
High Court.
14. The said order has been challenged in
the present proceedings. On July 16, 2007,
notice was issued by this Court. The
respondent appeared and affidavit-in-reply and
affidavit-in-rejoinder were thereafter filed.
Considering the nature of controversy, the
Registry was directed to place the matter for
final hearing and accordingly, the matter has
been placed before us.
15. We have heard the learned counsel for
the parties.
16. The learned counsel for the appellant
contended that both the courts had committed an
error of law in granting a decree of divorce
against the appellant-wife. It was submitted
that the courts below ought not to have held
that there was mental cruelty on the part of
the appellant-wife and the respondent-husband 1
was entitled to a decree of divorce on that
ground. It was also submitted that once the
High Court has not considered the allegation as
to termination of pregnancy without the consent
of the husband, no decree for divorce on the
ground of mental cruelty could have been passed
by it. Even if all the allegations leveled
against the wife had been accepted, they were
in the nature of `normal wear and tear' in a
matrimonial life of a couple which would not
fall within the mischief of clause (ia) of sub-
section (1) of Section 13 of the Act and the
orders passed by the courts below are liable to
be set aside. It was further submitted that
even otherwise, the wife is entitled to an
appropriate relief from this Court inasmuch as
from the evidence, it is clearly established
that the High Court confirmed the decree passed
by the trial Court on January 29, 2007 and
before the period of filing Special Leave to
Appeal to this Court expires, the respondent-
husband entered into re-marriage with a third 1
party and from the said wedlock, he is having
an issue. It was, therefore, submitted that the
husband has created a situation which had
seriously prejudiced the appellant and the
Court may not allow the respondent-husband to
take undue advantage of the situation created
by him.
17. The learned counsel for the
respondent-husband, on the other hand,
supported the decree passed by the trial Court
and confirmed by the High Court. It was urged
that the trial Court on the basis of evidence
adduced by the parties recorded a finding of
fact that the conduct and behaviour of the wife
was in the nature of mental cruelty and
accordingly allowed the petition filed by the
husband. The High Court, though convinced on
all grounds, did not think it fit to enter into
correctness or otherwise of the finding
recorded with regard to illegal termination of
pregnancy by wife without the knowledge and
consent of the husband since it was convinced 1
that even otherwise on the basis of evidence on
record, mental cruelty of the wife was
established. It was not necessary for the High
Court to consider and to record a finding as to
illegal termination of pregnancy by wife since
the decree passed by the trial Court could be
confirmed. As far as mental cruelty is
concerned, on the basis of other evidence and
material on record, a finding had been recorded
by the trial Court. The said finding was a
finding of fact which was confirmed by the High
Court. In exercise of jurisdiction under
Article 136 of the Constitution, this Court
will not interfere with the said finding and
hence the appeal deserves to be dismissed.
18. Regarding re-marriage by the husband,
it was stated that after the decree of divorce
passed by the trial Court, the husband did not
re-marry. But the decree of divorce was
confirmed by the High Court. The husband
thereafter had taken the action which cannot be
said to be illegal or otherwise unlawful. The 1
wife, therefore, cannot take a technical
contention that the husband should have waited
till the period of filing Special Leave to
Appeal to this Court would expire. It was,
therefore, submitted that the appeal deserves
to be dismissed.
19. Having heard the learned counsel for
the parties, on the facts and in the
circumstances of the case, in our opinion, it
cannot be said that by recording a finding as
to mental cruelty by the wife against the
husband, the Courts below had committed any
illegality.
20. Section 13 of the Hindu Marriage Act
provides for grant of divorce in certain cases.
It enacts that any marriage solemnized whether
before or after the commencement of the Act may
be dissolved on a petition presented either by
the husband or by the wife on any of the
grounds specified therein. Clause (ia) of sub-
section (1) of Section 13 declares that a
decree of divorce may be passed by a Court on 1
the ground that after the solemnization of
marriage, the opposite party has treated the
petitioner with cruelty.
21. Now, it is well-settled that the
expression `cruelty' includes both (i) physical
cruelty; and (ii) mental cruelty. The parties
in this connection, invited our attention to
English as well as Indian authorities. We will
refer to some of them.
Mental Cruelty
22. The concept of cruelty has been dealt
with in Halsbury's Laws of England [Vol.13, 4th
Edition Para 1269] as under;
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of
special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts 1
or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse".
23. In Gollins V. Gollins 1964 AC 644:
(1963)2 All ER 966, Lord Reid stated:
"No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weakness of the spouses, and 1
probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health".
24. Lord Pearce also made similar
observations;
"It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from normal standards of conjugal kindness causes injury to health or an apprehension of it, is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would considered that the conduct complained of is such that this spouse should not be called on to endure it".
[see also Russell v. Russell, (1897) AC 395 : (1895-99) All ER Rep 1].
25. The test of cruelty has been laid down
by this court in the leading case of N.G.
Dastane v. S. Dastane, (1975)2 SCC 326 thus: 2
"The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent...."
26. In Sirajmohmedkhan Janmohamadkhan v.
Haizunnisa Yasinkhan & Anr., (1981) 4 SCC 250,
this Court stated that the concept of legal
cruelty changes according to the changes and
advancement of social concept and standards of
living. It was further stated that to establish
legal cruelty, it is not necessary that
physical violence should be used. Continuous
cessation of marital intercourse or total
indifference on the part of the husband towards
marital obligations would lead to legal
cruelty.
27. In Shobha Rani v. Madhukar Reddi,
(1988) 1 SCC 105, this Court examined the
concept of cruelty. It was observed that the
term `cruelty' has not been defined in the 2
Hindu Marriage Act. It has been used in Section
13(1)(ia) of the Act in the context of human
conduct and behavior in relation to or in
respect of matrimonial duties or obligations.
It is a course of conduct of one spouse which
adversely affects the other spouse. The cruelty
may be mental or physical, intentional or
unintentional. If it is physical, it is a
question of degree which is relevant. If it is
mental, the enquiry must begin as to the nature
of the cruel treatment and then as to the
impact of such treatment on the mind of the
other spouse. Whether it caused reasonable
apprehension that it would be harmful or
injurious to live with the other, ultimately,
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 2
into or considered. In such cases, the cruelty
will be established if the conduct itself is
proved or admitted. The absence of intention
should not make any difference in the case, if
by ordinary sense in human affairs, the act
complained of could otherwise be regarded as
cruelty. Mens rea is not a necessary element in
cruelty. The relief to the party cannot be
denied on the ground that there has been no
deliberate or wilful ill-treatment.
28. In V. Bhagat v. D. Bhagat (Mrs.),
(1994) 1 SCC 337, the Court observed;
"Mental Cruelty in Section 13(1)(ia) 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. 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 unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must 2
begin as to the nature of the cruel treatment and then as to 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, 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. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment or conduct and continue to live with the other party. It is not necessary to prove that the 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. It 2
is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made".
29. This Court in Chetan Dass v. Kamla
Devi, (2001) 4 SCC 250, stated;
"Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case".
2
30. Mental cruelty has also been examined
by this Court in Parveen Mehta v. Inderjit
Mehta (2002) 5 SCC 706 thus;
"Cruelty for the purpose of Section 13 (1)(ia) is to be taken as a behavior by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the
matrimonial relationship with the other. Mental Cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. 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 inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record 2
and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
31. In A. Jayachandra v. Aneel Kaur,
(2005) 2 SCC 22, the Court observed 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 may be defined as wilful 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 norms 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 2
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 dispute."
32. In Vinita Saxena v. Pankaj Pandit,
(2006) 3 SCC 778, the Court said;
"It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the
matrimonial relations between the spouses. To amount to cruelty, there 2
must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
The word "cruelty" has not been defined and it 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 obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may 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".
33. It was further stated:
"Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act 2
complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.
The legal concept of cruelty which is not defined by the statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards the wife, denial of a company to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellants, ought this appellant to be called on to endure 3
the conduct? From the respondent's side, was this conduct excusable? The Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure."
34. Recently, in Samar Ghosh v. Jaya Ghosh,
(2007) 4 SCC 511, this Court held;
"No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of `mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental
cruelty.
3
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly
clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it
makes the married life for the
other spouse absolutely intolerable.
(iv) Mental Cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of
other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the
spouse.
3
(vi) Sustained unjustifiable conduct and behavior 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
3
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
behavior 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 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 3
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".
35. Now, coming to the facts of the case,
from the evidence of Smt. Vimal Kapur (mother-
in-law of appellant-wife and mother of
respondent-husband) who is examined as PW 1 and
Sudhir Kapur, husband-PW 2, the trial Court
held that the wife was interested in her career 3
only and she had neglected towards matrimonial
obligations and exercise of conjugal rights by
the husband. The trial Court also held that
termination of pregnancy by wife was without
consent or even knowledge of the husband which
was in the nature of mental cruelty. But
keeping the said element of mental cruelty
aside, the High Court was convinced that the
allegation of mental cruelty towards the
husband by the wife was clearly established
from the evidence on record adduced by the
respondent-husband. The High Court noted that
the appellant-wife was constantly and
continuously avoiding staying with the husband
and preventing him to have matrimonial
relations. From the letters of the appellant-
wife also, the High Court held that it was the
wife who had stated that she had completely
lost interest in the marriage and she was
willing to get divorce. The High Court further
noted that the appellant-wife sent a notice
through her advocate to the respondent-husband 3
during the pendency of mediation proceedings in
the High Court wherein she alleged that the
respondent was having another wife in USA whose
identity was concealed. This was based on the
fact that in his income-tax return, the husband
mentioned the Social Security Number of his
wife as 476-15-6010, a number which did not
belong to the appellant-wife, but to some
American lady (Sarah Awegtalewis). The High
Court, however, recorded a finding of fact
accepting the explanation of the husband that
there was merely a typographical error in
giving Social Security Number allotted to the
appellant which was 476-15-6030. According to
the High Court, taking undue advantage of the
error in Social Security Number, the appellant
wife had gone to the extent of making serious
allegation that the respondent had married to
an American woman whose Social Security Number
was wrongly typed in the income tax return of
the respondent-husband.
3
36. The High Court also observed that the
appellant wanted to pursue her professional
career to achieve success. In her written
statement itself, she had admitted that she was
very much interested in her career; that she
was independent since 1979 and she was keen to
live independent life.
37. The High Court also took a serious
note of an entry in the personal diary of the
appellant-wife dated September 14, 1986 wherein
she stated;
"I said, "we started this journey as two individuals and if you can do so fine otherwise forget and don't bring the ghost of parents in between the two of us. He did not like the use of words ghosts and first cursed my vocabulary and then he said "you do not have any, but I have better ties". At this I told him you are given these 15 days and you can find another wife for yourself. He has this notion that he will go to USA (NY) and I will stay with his parents and I told him I will not and he says this was the deal in July and when I refuted he said "no you had promised". I told him you have just now paid the fine and you are again using the same tricks again. Naturally, he did not like and said to me "I am not and have never with you played tricks". I said sorry- I do 3
not trust you any further and he said it is your fault. It may now be my fault but I think it is just quits. I don't think I will write to anybody back in Delhi now for 15 days and if I can find myself work here any kind".
38. From the above letter, it is clear
that the appellant-wife had described the
parents of the husband as `ghost'.
39. In the letter dated June 21, 1988, she
stated;
"I really wish you would understand my urge in pursuing my freedom away from the hawk eyes of your mother, sister and all other relatives. But, as I am not ready to share the economic gains of this job with you and other family members. I don't expect either you or them to understand my need and commitment for this job, or any job. I am bound to cause friction with so many people around me- I was at war with just you around me in Bombay."
40. In another letter, she stated that the
respondent-husband should not make a condition
for the wife of living together. She stated;
"I am not a good person to waste all your potential, emotion on. I do not deserve it.
... ... ... ...
3
Please do not make living together a condition for the coming few months. And do not read from these lines that I do not miss you- I do so individually and circumstantially- but as is my way of working I am not ready to stop myself for bonds and I believe the same for you. I wish the best and topmost for you-the most perfect, one can hope to be and wish that nothing becomes a barrier between you and you and your achievements. Even me. It will be best if we could help each other constructively; I also believe that we can do so- it is just that we believe in different things.
... ... ... ...
If possible, stand out of all this mess and try to work the best possible solution for us and your family. I do want you to remember that you are only one son and your family commitments. I would honour- but not at the cost of my spiritual search in life."
41. She further said that the respondent-
husband should not bring her marital status
preventing her from pursuing her career in the
name of marriage. She stated that when she was
unable to give even a child to the respondent-
husband, up to what stage, they should live
together. She clarified that she did not want 4
to close her avenues in life at least at that
stage. She also did not want to forego her
chances whatever she would believe about her
chances. She did not believe in love any more.
She expressly stated that she did not believe
in Indian social value system and she was very
happy in the foreign country.
42. She stated;
"Mujhe is vivah ke naam per apne raste se mat roke. Ho sakta he mein he galat hoon-per mujhe nahin lagta. Dampati ke tarah hum saath ji liye hein- purani quality of life se kuch neechey hi star per jiye hein- ye aur koin jaane ya na jaane- Cambridge school se ek dosre ko bada hota dekh suman- sudhir achhey se jaante hein. Es vivah mein aapko santan bhi na de saki- phir kahan tak jaruri hai ki hum saath rahe? Aap mere vicharo se to kabhi sahmat nahin honge per auron ki rai kar lein-jis kisiki bhi- apni jindgi suljha lein. Mujh se ye ummid karma chod de ke kisi vyaktigat (per mujh se unrelated) ya samajik karan se abhi mein apna rehne sochne ka tarika badloon. Jaisa maine pehle likha- jindagi ji kar jaise bhi, job hi, jab bhi samajh aayega tabhi aayega, jaise main apne liye chhot chahti hoon vaise he apni oar se jitna mujhe adhikar hein aapko bhi mukt karti hoon. Meine to kareeb chheh page par hi ye patr samapt kar diya-except for some help that I needed for car, etc-buy your 4
fax today was quite unsettling. I don't like to close my avenues in life- at lease not yet. I was naove to believe whatever I did for marriage as a constitution and marriage to you. I am not ready to forgo my chances- whatever I believe to be chances for what I have experienced as being married. I think the best alternative will be you stay in India for some more time. Chances are that even if you get an assignment outside Kansas we would be living separately. So decide for yourself cause when time comes I am going to do so for myself. I will this time not make a compromise and regret it a few months later and make both our lives miserable. I have done that several times in the past-at least you should have enough of it to stop trying to push me against my belief.
My way of loving is not like that. I do not even believe in love any more. There is no bigger lie that any one could tell another person. I do not even believe in the Indian social value system. So I am better off being here away from every person and every thing that I grew up with. Whenever I have understood things to be a different shade I will decide whether I want to be here or there."
43. The High Court, in contrast, referred
to the letters written by the respondent-
husband. It noted that those letters were full
of love and affection. According to the High 4
Court, the husband tried his level best to keep
the marriage tie to subsist and made all
attempts to persuade the wife explaining and
convincing her about the sacred relations of
husband and wife, the need and necessity of
child in their life and also feelings of his
parents who wanted to become grand parents.
According to the High Court, however, nothing
could persuade the wife who was only after her
career. In the light of the above facts and
circumstances, the Court held that the trial
Court did not commit any error of fact or of
law in passing the decree for divorce on the
ground of mental cruelty.
44. The High Court in paragraph 28 of the
judgment stated;
"Applying the above principles to the facts of the present case, I feel the respondent has been able to establish and prove `cruelty' under Section 13(1) (ia) of the Act. The conduct of the appellant has been examined above. I have referred to the letters exchanged between the parties during the period 1986 onwards till 1994. Some of the letters have been written by the 4
appellant herself. These letters reveal the conflict and difference between the parties. The present case also reveals that the respondent was bending over his
heels to placate and woo the appellant till 1994 but thereafter gave up. The respondent was deeply in love and was emotionally attached to her. He has however over the passage of time developed a hatred and ill-will for the appellant.
There is no apparent ground and
reason for the same except the
conduct of the appellant."
45. We find no infirmity in the approach
of the High Court. The finding relating to
mental cruelty recorded by the trial Court and
confirmed by the High Court suffers from no
infirmity and we see no reason to interfere
with the said finding.
46. The fact, however, remains and it has
been brought to the notice of this Court that
the respondent got re-married on March 05, 2007
before the expiry of period of filing Special
Leave to Appeal to this Court under Article 136
of the Constitution. It was also stated that a
child was born from the said wedlock on 4
December 20, 2007. Thus, the marriage had been
performed within a period of ninety days of the
order impugned in the present appeal.
47. Since, we are confirming the decree of
divorce on the ground of mental cruelty as held
by both the courts, i.e. the trial Court as
well as by the High Court, no relief can be
granted so far as the reversal of decree of the
courts below is concerned. At the same time,
however, in our opinion, the respondent-husband
should not have re-married before the expiry of
period stipulated for filling Special Leave to
Appeal in this Court by the wife.
48. It is true that filing of appeal under
Article 136 of the Constitution is not a right
of the party. It is the discretion conferred
on this Court to grant leave to the applicant
to file appeal in appropriate cases. But,
since the Constitution allows a party to
approach this Court within a period of ninety
days from an order passed by the High Court, we
are of the view that no precipitate action 4
could have been taken by the respondent-husband
by creating the situation of fait accompli.
Considering the matter in its entirety, though
we are neither allowing the appeal nor setting
aside the decree of divorce granted by the
trial Court and confirmed by the appellate
Court in favour of respondent-husband, on the
facts and in the circumstances of the case, in
our opinion, ends of justice would be met if we
direct the respondent-husband to pay an amount
of Rs. Five lakhs to the appellant-wife. The
said payment will be made on or before 31st
December, 2008.
49. The appeal is disposed of accordingly.
The parties will bear their own costs all
throughout.
.........................................................J. (C.K. THAKKER)
NEW DELHI, .........................................................J.
November 07, 2008. (D.K. JAIN)
R.K Nanda
(Expert) 27 May 2012
No more to add.
Raj Kumar Makkad
(Expert) 27 May 2012
No scope left of other experts to add anything.
Rajeev Kumar
(Expert) 27 May 2012
No room left for further addition
Shonee Kapoor
(Expert) 29 May 2012
Nothing left to be added.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com