Sunday, 2 August 2015

Whether wife initiating proceeding under S498A of IPC and S 125 of CRPC amounts to cruelty?

Then comes the wife filing a petition under Section 498-A of IPC and initiating proceedings under Section 125 Cr.P.C. However, mere filing of the petition, taking action for legitimate rights will not be amounting to cruelty. It is not brought on record that the allegations in the petition were of such grave nature, that they necessitated separation and perpetual severance between the parties.
Bombay High Court
Sandip vs Aruna on 5 March, 2009
Bench: K.U. Chandiwal
Citation;2009(6) MHLJ961 Bom
. The judgment and order dated 17.9.2003 passed by Additional District Judge, Shrirampur in R.C.A.No.
32/2001, rejecting Divorce by setting aside the judgment and decree passed by Civil Judge, Senior Division, Shrirampur in Hindu Marriage Petition No.75/1999, is under challenge by husband..
2) The parties are referred for convenience as husband and wife and at places with their first names Sandeep and Aruna. The marriage dated 10.02.1996 is in existence.
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According to husband, the petitioner barely resided for initial eight days, then she left with her brother Somnath and thereafter she was in his company for 6-7 months.
Even, during this short span, the wife caused mental trouble to the husband and his mother.
3) On 26.1.1997, the wife - Aruna went to her parents house with her brother Vijay and in March, 1997, she delivered a child. The petitiner/husband made all efforts for cohabitation,, but he was abused and driven away by the wife. Consequently, a notice was issued, asking the wife to join him.
                                ig      The wife did not comply.               There       was

    desertion            and     decree     for   divorce       was      sought.           The
    proceedings           under Section 125 of Cr.P.C.                and also         498-A

    of     I.P.C.         by     wife     has caused mental         torture         to     the

husband, providing additional avenue to seek divorce.
4) The wife Aruna denied the allegations of desertion or causing any mental cruelty to the husband. After birth of the child - Onkar, husband did not make any visit, all attempts from the wife to join the husband are curtailed and inhibited systematically supported by his mother. She reiterated that she was facing ill-treatment from the husband and his mother. She went in February 1998 for cohabitation with her brother Sanjay, but there was no response. It was the husband, who gave cruel treatment
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and deserted her and she consequently urged for dismissal of the divorce petition.
5) Learned Civil Judge, Senior Division, formulated issues, at Exhibit-20 and recorded that there was mental cruelty to the husband, the wife left the house forever without intention to come back and that the husband is entitled for divorce.
6) The first Appellate Court did not agree with the findings. He formulated following points, viz.-
(i) Is it proved that petitioner was subjected to cruelty at the hands of respondent ?
(ii) Is it proved that the respondent has deserted the petitioner without just cause ?
(iii) Whether the petitioner is entitled for divorce ?
              (iv)      What order ?

    7)        The    learned     Judge by recording negative              findings

    allowed     the appeal of the wife.         The petition for divorce

    came to be dismissed.

    8)        The    substantial questions of law are formulated by

    brother     Judge,       while    admitting the appeal         on     15th       of

    December, 2008, which are as under :

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              (i)     Whether subsequent events     and   conduct
during the pendency of the petition and appeal can be taken in to account for the purpose of granting relief to the appellant and reckless and wild allegations made by the wife in the proceedings by going beyond the purview of what was necessary for denying the allegations made against her will amount to cruelty and is sufficient to dissolve the marriage by decree of divorce ?
(ii) Whether in view of the judgment of the Hon'ble Supreme Court reported in 2002 AIR SCW 162, an act committed with an intention to cause suffering to other party and even filing false proceeding will amount to cruelty ?
(iii) Whether in view of law laid down by this Court in 2002(3) Mh.L.J. 872 the impact of cumulative events and circumstances in the mind of the husband can be considered as cruelty and decree for divorce can be granted on that ground ?
9) In order to prove the case, the husband has examined himself and his witnesses - Sushila Gopinath;
Suman Dagdu, a social worker; Nanasaheb Shankar and Rukhminibai Vitthal, while the wife has examined herself.
10) The term 'desertion' is practically separation of one spouse from the other with intention on the part of deserting spouse of bringing cohabitation to an end. It also embodies that such separation should be associated without consent of the other spouse. The mere physical act of departure of one of the spouse, will not necessarily lead to infer that there was a desertion or
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withdrawal from the company. The conduct of the parties in matrimonial affairs ordinarily will not be spelt in documents, and when the parties are from lower middle class or down-trodden community. The husband runs a very small tea-stall (Tapari) while the wife is a destitute with her mother, who is an agriculture labour. With these set of affairs, while assessing the evidence, the accuracy, as is expected, normally in evidence about dates and events, is difficult to surface in this matter. It is also apparent that parties in matrimonial controversy more lean to resolve to ego, than to any sacrifice or any surrender to some thoughts.
11) Learned Counsel for the husband relied upon following rulings -
a) 2002 AIR SCW 162 - G.V.N. Kameswara Rao Vs. G.Jabilli.
b) 2001 AIR SCW 4641 - Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi;
c) 2008 (4) Bom.C.R. 830 - Jagdish Singh Vs. Madhuri Devi;
d) (2009) 1 SCC 422 - Suman Kapur Vs. Sudhir Kapur;
e) 1995 (1) Bom.C.R. 47 - Rajan Vasant Revankar Vs. Mrs. Shobha Rajan Revankar;
f) 2002 (3) Mah.L.J. 872 - Nilima Kishore Mhaske Vs. Kishore A. Mhaske;
12) Recently in Samar Ghosh Vs. Jaya Ghosh, reported in (2007) 4 SCC 511, the Hon'ble Apex Court held as under :
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"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour 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.
(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.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. the treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than
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jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation 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 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."
13) The efforts to reconcile the relations did not
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yield any fruits as emerged in the Court record and even before this Court. The husband asserts that there was cruelty and a deliberate desertion by the wife. Let us scan the evidence, whether indeed, it leads to a logical conclusion that the wife purely responsible for the so-called cruelty or desertion. The undisputed fact is the wife was forced to leave matrimonial home when she was eight months' pregnant, carried by her brother. Her prior stay with the husband, though according to the husband was in bickering, but it was not of such grave nature to invite a decree for divorce. It was the custom prevalent in the parties, ig which necessitated the wife to go for delivery to her mother. It was not her volitional act to deprive the husband from enjoying the matrimonial life.
If the husband was honest enough in his behaviour and attitude, it was a logical expectation that after delivery of the male child, the husband would visit to meet the child. In this case though there is pleading that husband has gone to meet the wife and the child, in the evidence, the husband has accepted - " I did not go to see my son."
Thus, the husband wanted to take benefit of the situation that it was the wife, who has deserted him.
14) All the attempts made by the wife through herself and mediators, including services of social worker - Suman Dagadu, did not yield any result as the attitude of the
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husband was demonstrated to be more adamant. The husband never visited the wife. Consequently, it is difficult to digest that wife might refused to join him after 1 1/2 months of the delivery or that she subsequently refused to return. These allegations are apparently the product of fertile mind than the real events.
15) Sushila Bhalke, mother of the husband, is bound to support her son. She refers about the trivial issues in the family. The sum total thereof will not amount to a mental cruelty as her evidence is short of any event either remotely or generally to castigate the wife. She asserts that when the male child was born, she had gone to the parental house of wife, but it was communicated that she will be sent after 1 1/2 months, but she did not come.
The mother Sushila says, wife sent a message, unless the petitioner resides separately she will not come for cohabitation. Thereafter she along with her son/husband went to the respondent's house to bring her back, but the wife refused to come and insisted for separate living.
This part of evidence is apparently a figment, as her son unequivocally accepts, he never visited his wife. The mother could not specify incident of cruelty. On the other hand, it was their odd behaviour, which needs to be looked into. Immediately on the next day of delivery, a message was sent by wife about her delivery through her
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brother Vijay and when the mother accepts that customary obligation invited the husband to join the wife and bring her to matrimonial home with the child, however, no such exercise is accelerated by the husband.
16) The factum of issuance of notice is established, however, the wife after such notice, along with her brother, visited the husband, but the husband and Sushila refused to allow her to join the company.
17) Thus, the evidence of mother and the husband taken together falsify their stand that the wife was responsible for desertion or her behaviour was of such nature, which amounted cruelty. The evidence of Nana Shankar, friend of husband, will not resolve the controversy as the husband himself accepted having not visited his wife, then question of Nana going with husband will not arise. Nana is silent as to any event in the matrimonial event of bickering between the husband and the wife.
18) Then comes the wife filing a petition under Section 498-A of IPC and initiating proceedings under Section 125 Cr.P.C. However, mere filing of the petition, taking action for legitimate rights will not be amounting to cruelty. It is not brought on record that the allegations in the petition were of such grave nature, that they
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necessitated separation and perpetual severance between the parties.
19) There is no case that the husband, after the wife leaving for delivery, has condoned her earlier acts and still the bickering continued. But it is a case of husband that there was initial desertion followed by subsequent cruelty by the wife. The theory that wife was asking for separate residence though is not established, will not be amounting to any cruelty. In order to constitute cruelty, the basic requirement is : the conduct must be such, which inflicts upon the husband such mental pain and sufferings as would make it impossible for the husband to live with the wife. One cannot be oblivious to the sanctity and importance of marriage between life of the spouses. The Court is required to assess about the conduct of the wife; whether it was indeed a nature which demonstrated her total disregard to the husband or his mother or that her conduct was such that she did not believe in happy matrimonial life.
Filing of the criminal case under Section 498-A, reading the allegations as a whole therein will not lead to press in service the aspect of cruelty.
20) The sanctity of marriages is to be under cloud these days, which is commonsense_ affecting the society at
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large. The cultural heritage of the parties herein will also to be looked into while assessing their conduct as they are from a down strata, cannot afford to enjoy luxurious life and are bound to live in the meagre resources. It is the wife, who, in such strains desired to make the home wonder-place to live. But the continuous vices between the partners of the marriage, has disturbed the atmosphere at home, added to it was the behaviour of mother of the husband. The parties apparently lost sight, that foundation of happy home was sharing of love by both and not in hurling allegations against individual. The mediators even did not attempt to cement the hearts, which were on the verge of breaking, but felt it a merry situation when the husband and the wife were on discord.
21) The allegations in the petition under Section 498-A of IPC or proceedings under Section 125Cr.P.C., referring to the respective judgments in R.T.C.No.6/2000 dated 11.2.2002 and Cri.Misc. Application No. 29/2000 dated 26.9.2001, do not cumulatively lead to demonstrate that the wife was harsh in her narration. It is a matter of record that the husband and his family members were acquitted from the allegations by judgment dated 11.2.2002 and the proceedings for maintenance are also turned in negative. In the proceedings under Section 498-A of IPC, the Court has recorded that the wife could not establish
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that there was a physical torture to her with intent to get amount of money from her parents. The Court has recorded that the witnesses/wife have narrated inconsistent theory. The Court also recorded that the wife herself does not know the exact date of marriage as she stated date of marriage as 10.02.1995 while her brother Vijay has stated such date to be 10.02.1996, though such reference of date was in consequential as status of the parties of marital tie was not a matter in issue. The sum total is the allegations in the complaint, are of not such a nature, which made the husband to rush to seek divorce on the ground of cruelty. The husband has failed to prove that he was subjected to cruelty. The evidence is otherwise.
22) Counsel for the appellant took me to the Judgment of G.V.N.Kameswara Rao Vs. G. Jabilli ( 2002 AIR SCW
162), where the Apex Court, on appreciation, found that there was mental cruelty. It was the case where the husband, a double doctorate holder was working in USA. He alleged that attitude of wife was not cordial and cooperative. After return to India, wife did not allow the husband to enter; the request of husband to join him in USA did not yield result. Wife accepted, that their marital life was not happy. The Apex Court also recorded "insight in past conduct of wife'. No such eventuality in
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the present case is surfaced.
23) The parameters highlighted in the matter of Samar Ghose (cited supra) will have to be considered in the matter. There is no sustained unjustifiable conduct of the wife, which has affected the mental health of the husband. It is apparently a unilateral desire of the husband to avoid company of his wife, as she has a swallow complexion. Such irritations in the life of the husband needs to be looked as normal wear and tear in a married life, which should not be taken ultimately to severe the marital tie.
24) Taking survey of all the facts and evidence brought on record, the husband failed to prove that he was subjected to cruelty or that he was deserted by the wife.
The evidence is otherwise. The learned Judge of the Appellate Court did not commit any mistake. The substantial questions of law formulated by this Court on dated 15th December, 2008 are answered in negative. In the result, the appeal dismissed with costs.
(K.U.CHANDIWAL,J.) bdv/uniplex/sa361.05
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Authentic copy (BD VADNERE,PS)
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