Tuesday, 31 January 2017

When wife is entitled to get decree for divorce on ground of cruelty by husband?

 We must take note of  another disturbing feature which we have
noticed in this case is that for the purpose of gaining her freedom from
an oppressive husband who apparently has chosen to treat the wife as
his   slave   displaying   male   chauvinistic       tendency   by   continuously
harassing her and treating her  like a dog on a leash,  she had begged
to let her go and live independently and for that purpose she withdrew
the written complaint which she had filed with the police which is at
Exhibit­41 only because the husband had promised her that he would
give her divorce by mutual consent and only on that assurance the said
complaint   was   withdrawn.     In   the   cross­examination   when   this
question was asked to her, she had given her explanation  as to why
she had withdrawn this complaint. She even made a statement that
she would not claim any maintenance; past, present or future or any
share in the property and would also resign from the partnership firm
where she was a partner alongwith her husband.  However, husband's
heart did not melt down by this offer made by the wife.  The wife did
not stop there.  She even gave up her right to see her only son which
normally no mother would accept but she even chose to give up her
rights over the custody of her only son.   The question which falls
before us is, why would this  woman would go to such an extent of
forgiving every thing to get freedom?  In spite of this,  the husband
was   not   moved   and   he   has   chosen   to   again   raise   fictitious   and
imaginary objections in the Consent Terms and finally put his foot
down.  Parties always are at liberty to litigate and no one can compel a
party   to file  Consent Terms.    We  have therefore  heard both  the
learned Counsel appearing on behalf of both the parties at length.
26. For the reasons stated above FCA No.58 of 2015 is  dismissed.
Since   the   Family   Court   Appeal     No.58   of   2015   is   dismissed   and
disposed of, Family Court Appeal (Stamp) No.27753 of 2016 filed by
the husband for restitution of conjugal rights does not survive and it is
also disposed of. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE  JURISDICTION
FAMILY COURT APPEAL NO.58 OF 2015

Suresh Bhandary 
V/s
Mrs Sushma Bhandary 
    CORAM:  V. M. KANADE &
    MRS. SWAPNA S. JOSHI, JJ
 
  DATE:   15th October, 2016  
Citation: 2016 (6) ALLMR 850


1. The   learned   counsel   for   the   Appellant   has   invited   our
attention   to   a   letter   dated   9/10/2015   written   by   an   advocate   on
record in the Supreme Court, informing him that the Appellant is
taking urgent steps for filing an SLP against an order passed by this
Court dated 2/9/2016.  In the said letter, it is therefore, requested that
an   adjournment   may   be   taken   for   hearing   of   the   appeal.     It   is
submitted that Appellant may seek adjournment on this ground.
2. In our view, so far as order dated 2/9/2016 is concerned,
we had already granted leave to the wife to file an application seeking
enhancement of maintenance.   We had made it clear to both the
parties that we do not propose to hear an application for enhancement
of maintenance, and that we would like to hear the main appeal first.
3. This is a peculiar case where the husband is not ready to
give   divorce,   though   consent   terms   were   filed   and   practically
Respondent/wife had almost agreed to all the terms and conditions,
which are imposed by the husband, because she had no other option

but to do so.  The wife, therefore, did not claim custody of the son or
even access, since he is almost 16 years of age and very soon he will
attain   18   years   of   age,   and   he   would   be   in   a   position   to   decide
whether he would like to meet his mother or not. Secondly, since wife
was seeking divorce on the ground of cruelty, she agreed to withdraw
all the allegations, which were made in the petition.   The husband,
however, insisted that record should be clear.  However, the husband
insisted that wife should make a statement that the allegations which
were made by her in the petition for divorce were false.  She did not
accept this condition.   Lastly, she had also agreed that she will not
claim past or future maintenance and that   she will also not   claim
share in the property, and the consent terms were exchanged.  We had
suggested that both parties should withdraw allegations against each
other because if   a statement is made by wife that the allegations,
which were made by her in the petition, were false that  would create
a problem for her in future because the husband may again prosecute
her for making false allegations.  We explained both the parties that
standard formula in such  cases is that both parties should withdraw
the  allegations  made  against each  other.    Thereafter again a new
contention was raised by the husband, and he insisted that wife should
make a statement that she does not have any claim in the husband's
property, and she would not create any right, title and interest in the
property of her husband or his family members.  It needs to be pointed
out that  the father of the wife is the maternal uncle of the husband,
which relationship is permitted under the Hindu Law, and there is a
custom of giving maternal uncle's daughter in marriage to the sister's
son in India.  In this case, however, the Appellant and the Respondent
had   love   affair   when   the   wife   was   just   18   years   of   age   and   the
husband, at that time, was 35 years of age.  It is a matter of record
that   wife's   father   is   comparatively   in   much   more   better   financial
position   than   the   Respondent,   as   has   been   transpired   during   the
course of submissions, made by the parties.  The husband's mother has
filed a suit against her brother claiming share in the property of her
father.   In the said suit, allegations are made that signatures of his
mother are forged by the Respondent's father.  We are informed that
the husband proposes to file a similar suit.
4. It appears that, therefore, husband is not keen to file the consent
terms.     The   parties,   of   course,   cannot   be   forced   to   coaxed   or
threatened to enter into the consent terms and they have to do so only
at their own volition.  It is duty of this Court to pursue the parties to
sit together and find out an amicable solution.  If the solution cannot
be arrived at, the Court has no other option but to hear the matter on
merits.     Since   we   have   made   it   clear   that   the   application   for
maintenance will be heard later on, we do not find any reason to
adjourn   hearing   of   the   family   court   appeal.     Hence,   request   for
adjournment is refused.  
5. Both   these   appeals   can   be   conveniently   disposed   of   by   this
common judgment.
6. Heard   the   learned   Counsel   appearing   on   behalf   of   the
Appellant/husband and the learned Counsel appearing on behalf of
the Respondent/wife.
7. Appellant/husband has filed two appeals.   The first appeal is
filed  against the common judgment and order passed by the Family
Court   dated   28/11/2014   whereby   Divorce   Petition   filed   by
Respondent/wife was allowed and divorce was granted to her on the
ground of cruelty under section 13(1)(ia) of the Hindu Marriage Act,
1955.   Appellant/husband had  filed a Petition  under section 9 of the
said Act for restitution of conjugal rights  which was  also dismissed by
the said common judgment and order passed by the Family Court.
The second appeal is therefore filed by the Appellant challenging the
same common judgment and order.
8. Both the learned Counsel made lot of attempts to settle the
dispute.     However,   despite   several   attempts   being   made,   for   one
reason   or   the   other,   the   Appellant/husband   backed   out   from   the
Consent   Terms.     We   found   that   on   number   of   occasions,   on   one
pretext  or the other,  Consent  Terms could  not be  filed.   Initially,
Appellant/husband   made   a   suggestion   that   the   Respondent/wife
should admit in the Consent Terms that she had made false allegations
against the husband.   This obviously was not accepted by the wife
since, according to her, the said allegations were not false be she was
withdrawing the allegations so that decree by consent under section
13­B of the said Act could be passed.  Thereafter, husband raised an
objection that the wife should also make a statement that she would
not claim any past, present or future maintenance or interest in the
husband's property or his family members' property.   The wife was
ready to make statement that she would not claim any past, present or
future maintenance or any claim or interest in the business of the
husband.  However, now the Appellant/husband wants to extend the
scope and include even his family members.  Appellant's mother has
also filed a suit claiming share in the wife's father's property and it has
also been alleged that the wife had forged signature of the Appellant's
mother.   
9. Despite several efforts being made, parties were not ready to file
Consent   Terms.   Respondent/wife   felt   that   she   had   not   claimed
maintenance only on the condition that husband was ready to give her
divorce by mutual consent and since the husband was not giving her
divorce   by   mutual  consent,   she   again   filed   an   application   seeking
maintenance. 
10. We felt that since the parties cannot be compelled to settle the
matter,   it   would   be   appropriate   to   dispose   of   these   appeals   and
accordingly, today, we have heard  the learned Counsel appearing on
behalf of the Appellant/husband and the learned Counsel appearing
on behalf of the Respondent/wife at great length.
11. The   learned   Counsel   appearing   on   behalf   of   the
Appellant/husband has not only taken us through the pleadings viz.
Petition, Written Statement but also through the Examination­in­Chief
of   the   wife,   husband   and     cross­examination   of   the   wife   by   the
husband's advocate.     We find that the wife was cross­examined at
length for almost eight full days.  Most of the cross­examination is in
the nature of suggestions.
12. The   learned   Counsel   for   the   Appellant/husband   then   went
through   the   written   submissions   which   he   has   submitted.     We
permitted him to go through the written submissions. It is submitted
that no case of cruelty has been made out by the wife.  Secondly, it is
submitted that there is no material on record to show that wife was
actually beaten up by the Appellant/husband.  Thirdly, it is submitted
that the Respondent/wife has not produced any medical evidence or
record   in   support   of   her   case   that   she   was   assaulted.     It   is   then
submitted   that   photograph   which   has   been   produced   is   fabricated
photograph.   It is then contended that in the cross­examination, the
wife has admitted that she had withdrawn the complaint which was
filed by her in 2011 and which is  at Exhibit­41.  He submitted that
therefore   statement   of  the   witness   could   not   be   relied  upon.   He
submitted   that   on   the   other   hand   the   Appellant/husband   has
established that the Respondent/wife had abandoned the child and
she was negligent in performing her duties and husband was never
financially dependent on her father.   He submitted that there were
statements   made   in   the   Petition   that   the   Appellant/husband   was
having   a   good   income.     He   therefore   submitted   that   all   these
admissions falsify the case of the Respondent/wife.  He submitted that
the   learned   Family   Court   Judge   has   not   considered   all   these
admissions and has not considered the material on record in its proper
perspective.
13. On the other hand, the learned Counsel appearing on behalf of
the Respondent/wife has submitted that the Appellant/husband had
made the life of the Respondent/wife miserable to the extent that she
had no other option but to leave the house to protect herself.   She
submitted that the the Appellant was subjected to mental and physical
cruelty by the husband and was literally treated as his slave.   She
submitted that there was no reason to disbelieve the said testimony of
the wife regarding continuous abuse and assault by the husband and
his   mother.     She   then   submitted   that   apart   from   establishing   the
ground of cruelty on account of treatment meted out to the wife, there
was another ground on which the Respondent was entitled to get
divorce.  She submitted that it is a well settled position in law that if
allegations are made in the pleadings by the husband which are not
true and proved to be false then such allegations also amount to an act
of cruelty. She invited our attention to the Written Statement filed by
the husband.   She submitted that number of false allegations have
been levelled against the wife.  Firstly, it was alleged that she was a
woman of loose character.   Secondly, it was alleged that she was
mentally unsound.   Thirdly, it was alleged that she used to come to
house   at   late   hours   in   the   night.       She   submitted   that   all   these
averments   in   the   Written   Statement   are   instances   of   derogatory
statements and allegations made against the wife.   She submitted that
therefore these allegations itself amounted to cruelty.  She submitted
that   similarly   in   the   Petition   filed   by   the   Appellant/husband   for
restitution of conjugal rights under section 9, similar allegations were
made against the wife.   In support of the said submission, she has
relied on the Judgment of this Court in Mrs. Manisha Sandeep Gade vs.
Sandeep Vinayak Gade1
.  She relied on paras 3, 4, 6 and 16 of the said
judgment.  She has then invited our attention to the Judgment of the
Apex Court in  Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar
Bhate2
.  She relied on paras 1, 7 and 11 of the said judgment.  She has
then relied on the judgment of the Apex Court in V. Bhagat vs. Mrs. D.
Bhagat3
. She invited our attention to paras 7, 10, 11, 17 and 20 of the
said judgment.
14. On the other hand, the learned Counsel appearing on behalf of
the Appellant also placed reliance on number of Judgments.  He has
relied on the Judgment in  Sumathi vs. Palanichamy4
.   He has also
relied on the judgment of the Apex Court in Savitri Pandey vs. Prem
Chandra Pandey5
. He then invited our attention to the Judgment of the
1 AIR 2005 Bombay 180
2 AIR 2003 SC 2462
3 AIR 1994 SC 710
4 I (2009) DMC 375
5 (2002) 2 SCC 73
Division Bench of this Court in  Hemali Bindesh Kelaiya vs. Bindesh
Jayantial Kelaiya1
.  He has also relied upon the judgment of the Apex
Court in Dr. N.G. Dastane vs. Mrs. S. Dastane2
  He submitted that the
Apex Court in Dr. N.G. Dastane (supra) has clearly held that the acts
which   have   been   condoned   cannot   be   re­agitated   and   cited   as
circumstances  of  cruelty.    He  submitted  that  the  wife  had  filed a
complaint against the husband  in 2011 and which is at Exhibit­41 and
she having later on withdrawn the same, it could not be relied on as
an instance of cruelty.   He submitted that Apex Court has held that
common wear and tear in family life cannot be considered as a ground
of cruelty.
15. After having heard both the parties at length, we are of the view
that   there   is   sufficient   material   on   record   to   establish   that   the
Appellant/husband has continuously treated the wife with physical
and   mental   cruelty.     His   conduct   can   also   be   seen   from   the
circumstances which are narrated in the evidence of the wife.  We are
therefore of the view that the Respondent/wife has established that
the Appellant/husband has treated the wife with cruelty within the
meaning of  section 13(1)(ia)  of the said Act and therefore  she is
entitled to get decree of divorce on that ground alone.   We concur
with the finding which is given by the learned Family Court Judge in
her   Judgment   wherein   she   has   held   that   Respondent/wife   has
established her case of cruelty.
1 I (2014) DMC 243 DB (BOM)
2 AIR 1975 SC 1534
16. It has to be borne in mind that the principles of appreciation of
evidence are quite well settled.  In a dispute between the husband and
wife, it is not possible to bring documentary evidence on record and,
very often, the case has to be decided on the word of the wife against
the word of the husband.   A judicial trained mind, however, can very
well examine the facts and circumstances of the case and then draw its
own inference from the material on record.   Most of the time acts of
cruelty take place in close room or bedroom  of the couple where
neither the parents nor children are privy to what happens inside the
four walls of the bedroom.   It is also quite well established that the
women in India normally do not like to bring the dispute between the
husband and wife in open and very often do not disclose to their
parents  extreme cruelty at the hands of the husband because she feels
that if such a disclosure is made, it would make her parents unhappy.
The   situation   in   India   is   therefore   such   that   the   husband   plays   a
dominating role in the house despite the fact that wife is educated,
working and belongs to affluent family. 
17. In the present case, the facts are quite interesting.  The wife is a
cousin of the husband.  Wife's father is the maternal uncle (Mama) of
the Appellant/husband   and such marriages are permitted in India
according to Hindu Law and it has also been the tradition and custom
in Southern part of India. It is common ground that the husband and
wife   belonged   to   Shetty   Community   which   is   mainly   in   the   hotel
business.  It is also common ground that wife and the husband fell in
love and at the relevant time the wife was 18 years old  and the
husband was 35 years old. There was a big difference of age between
both of them.  We have no reason to disbelieve her version of regular
assault by the husband, though it has been strenuously urged that
instead of going to medical clinic, the wife went to photo studio to
create the fabricated record. We do not accept this submission.  If the
wife is interested in maintaining good relations with the husband and
his family members, she  would conceal several cases of assault by the
husband   rather   than   choose   to   go   to   Police   Station   and   lodge   a
complaint.  It is a matter of record that, initially, in 2003, she had left
the   house   and   gone   back  to  her  father.     However,   after  she  was
persuaded by the husband, she returned to the matrimonial house.
Second time however she left in the year 2006 when things became
intolerable, even leaving  her only son with the husband.
18. The consistent evidence given by the wife therefore echoes her
trauma   which   she   had   suffered   continuously   at   the   hands   of   the
husband.  The contention of the Appellant/husband that because she
has not produced medical certificate, her evidence should be discarded
cannot   be   accepted.     We   are   therefore   of   the   view   that   the
Respondent/wife has established that husband had treated her with
physical   and   mental   cruelty   by   constantly   assaulting   her   and   by
mentally torturing her.
19. The second ground which has been taken in the Petition is that
the Appellant/husband was demanding money from the wife's father.
Both the parties have led evidence on this point.  There is no material
on record to establish that such demand was made. Moreover, in the
later part of her testimony, the Respondent/wife at one stage had
stated that the husband's hotel known as Curi Club was doing very
well.  We are therefore not satisfied that the said ground which has
been taken by the Respondent/wife can be said to be established and
for want of further material on record we are of the view that the said
ground is not established.
20. Thirdly, however, from the perusal of the Written Statement
filed by the husband and also from the averments made by him in the
Petition for restitution of conjugal rights, it is evident that the husband
had tried to tarnish the image of Respondent/wife in various ways and
from the material on record we do not find that he has established all
these allegations which are made by him in the Written Statement as
well as in the Petition under section 9.
21. It is quite well settled that definition of cruelty now has been
held to include all unwanted allegations made by the husband against
wife.     The Apex Court in  Mrs. Manisha Sandeep Gade vs. Sandeep
Vinayak Gade1
 has observed in paras 3, 4, 6 and 16 as under:­
1 AIR 2005 Bombay 180
“3.  The  respondent  husband  raised  various  grounds to
substantiate his case for cruelty. As enumerated by the
learned Family Court Judge, there were in all six instances
of cruelty, they being as follows:­
(i) Refusal to do domestic work.
(ii) Insulting and abusing.
(iii) Insisting on having a separate residence.
(iv) To visit the matrimonial home and not to return on a
number of days every week.
(v) Threatening and terrorising the husband and his
parents.
(vi) Not disclosing that she had some gynecological
problem prior to marriage and concealing her
miscarriage which took place sometime in December
1998.
The appellant wife denied these allegations, but over and
above the denials, she made certain allegations of her own in
para 5(K) and (L) of the written statement. In para 5(K), she
mainly made three allegations; (i) the respondent behaved
with her perversely and harassed her sexually; (ii) he would
indulge in obscene talks with his girl friends on phone and in
person and would behave immodestly with the girl friends to
torture the appellant, (iii) he had illicit relationship with one
Leena, wife of Vivek, and in fact he wanted to marry her. In
para 5(L), she made allegations against her father in law that
his behaviour with her was improper and in that she alleged
that (i) he would touch her unnecessarily and (ii) he would
barge into the kitchen if she was changing her clothes.”
“4. The respondent examined himself and then led the
evidence of a few supporting witnesses, including his mother.
The appellant examined herself and a few supporting
witnesses. The examination-in-chief was by way of filing
affidavits on the basis of which the cross-examination was
conducted. After recording this evidence, the learned Judge
came to the conclusion that the appellant had failed to
establish the six specific instances of cruelty. He, however,
took the view that the allegations made by the appellant in
her written statement were baseless and amounted to cruelty.
The learned Judge noted that with respect to the allegations
about relationship between the respondent and Leena, except
the bare words in the affidavit of appellant, there is no other
evidence on record. He commented that it was her duty to
examine Vivek. Similarly with respect to the allegations
against the father of the respondent, the learned Judge noted
that the allegations were vague and she should have given
some details about the same. He, therefore, allowed the
petition filed by the respondent husband on the ground of
cruelty and granted the decree of divorce. Sine he was
granting the decree of divorce, he examined the question as
to whether the appellant wife was entitled to permanent
alimony under Section 25 of the Hindu Marriage Act. Having
however noted that the income of the appellant wife was
more, he held that she was not entitled to permanent
alimony.”
“6. It is material to note that whereas the wife has filed FCA
No. 49 of 2004 to challenge the order of divorce which is
granted in view of her baseless allegations, the respondent
husband has not filed any cross objection to the extent the
learned Family Court held that the six instances of cruelty
claimed by him were not established. Therefore, the question
as to whether those items specifically pleaded by the
respondent husband constituted cruelty or not no longer
survives. The respondent husband not having challenged the
finding on those six items, it will have to be held that he has
accepted that he has failed to establish the allegations of
cruelty on those grounds. We may as well add that the
counsel for the respondent also did not press any of those
instances in argument.”
“16. Analysis of the above referred two judgments of the
Apex Court makes it clear that where serious allegations are
made in pleadings, the consequent irretrievable break down
of the marriage (though not a ground by itself) will be a very
important circumstance to be considered while deciding
whether divorce should be granted or not. Once such serious
allegations are made, it becomes clear that there is no
chance of parties coming together or living together again.
As observed in para 22 of judgment in V. Bhagat v. Mrs. D.
Bhagat (supra), making of the allegations and yet opposing
divorce would mean a resolve to live in agony only to make
the life miserable for both the parties. Para 23 records a
clarification that there must be some extraordinary feature to
warrant the grant of divorce on the basis of pleadings and
other admitted material without a full trial. While scrutinising
the evidence, the said circumstance indicating an
irretrievable break down of marriage can be borne in mind to
determine whether the ground alleged is made out. In
Chanderkala Trivedi's case (supra) also, it is held that once
serious allegations are made in the pleadings of husband and
wife, it is obvious that the marriage between the parties is
dead and continuing the litigation further is nothing but an
exercise in futility and continuing the agony.”
The Apex Court in Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar
Bhate1 has observed in paras 1, 7 and 11 as under:­
“1.  The above appeals have been filed by the husband, who
lost before both the courts, challenging the orders granting
dissolution of the marriage solemnized between parties on
10th June, 1973 at the instance of the respondent wife and
dismissing the petition filed by the appellant seeking for the
relief of restitution of conjugal rights and custody of the two
daughters. The wife filed M.J. Petition No. 832 of  1983
under Section 13(1)(1­a)  of the Hindu Marriage Act, 1955,
seeking for dissolution of the marriage and grant of divorce
on the ground of cruelty said to have been meted out to the
wife.   In   support   of   her   claim,   the   wife   narrated   several
instances of harassment and nagging attitude, which caused
her mental agony and serious set back in health. These were
ultimately   considered   and   viewed   by   the   learned   Family
Court Judge to be mere normal wear and tear of marital life.
But at the same time, the allegations made by the husband,
1 AIR 2003 SC 2462
extensively   with   enumeration   of   instances   and   incidents
against wife branding her as an unchaste woman, keeping
illicit relations ­ sexually and otherwise with one Ramesh
Sawant,   the   son   of   a   neighbour,   though   subsequently
withdrawn   by   seeking   an   amendment   of   the   written
statement, weighed with the court to uphold the claim of
the wife for divorce. The manner of narration and claims of
such   allegations   in   the   written   statement   was   also
considered to be per se indicative of the fact that he made
such allegations against her not only when they were living
together but also to her relatives, friends and persons whom
he had contacted for reconciliation. The learned trial judge
was also of the view that notwithstanding the withdrawal, in
a   reply   filed   on   17.1.90   also,   those   allegations   were
considered   to   have   been   substantially   reiterated   by   the
husband.   Consequently,   the   Family   Court   allowed   M.J.
Petition No. 382 of 1983 on 7.4.1994. As a sequel to the
same, the application in M.J. Petition No. 66 of 1988 filed
by the husband for restitution of conjugal rights and custody
of the daughters tried simultaneously with the other petition
came to be rejected by a separate order on that very date of
judgment granting dissolution of marriage between parties.”
“7.  The question that requires to be answered first is as to
whether   the   averments,   accusations   and   character
assassination of the wife by the appellant husband in the
written statement constitutes mental cruelty for sustaining
the claim for divorce under Section 13(1)(1­a) of the Act.
The  position   of  law   in   this   regard  has  come   to  be   well
settled and declared that leveling disgusting accusations of
unchastity and indecent familiarity with a person outside
wedlock and allegations of extra marital relationship is a
grave assault on the character, honour, reputation, status as
well   as   the   health   of   the   wife.   Such   aspersions   of
perfidiousness attributed to the wife, viewed in the context
of an educated Indian wife and judged by Indian conditions
and standards would amount to worst form of insult and
cruelty, sufficient by itself to substantiate cruelty in law,
warranting the claim of the wife being allowed. That such
allegations made in the written statement or suggested in
the course of examination and by way of cross­ examination
satisfy the requirement of law has also come to be firmly
laid  down  by  this  Court. On going  through  the relevant
portions of such allegations, we find that no exception could
be taken to the findings recorded by the Family Court as
well   as   the   High   Court.   We   find   that   they   are   of   such
quality,   magnitude   and   consequence   as   to   cause   mental
pain, agony and suffering amounting to the reformulated
concept of cruelty in matrimonial law causing profound and
lasting disruption and driving the wife to feel deeply hurt
and reasonably apprehend that it would be dangerous for
her to live with a husband who was taunting her like that
and   rendered   the   maintenance   of   matrimonial   home
impossible.”
“11.   That   apart,   in   our   view,   even   the   fact   that   the
application   for   amendment   seeking   for   deletion   of   the
accusations made in the written statement was ordered and
amendments carried out subsequently does not absolve the
husband   in   this   case,   from   being   held   liable   for   having
treated   the   wife   with   cruelty   by   making   earlier   such
injurious reproaches and statements, due to their impact
when made and continued to remain on record. To satisfy
the requirement of Clause (i­a) of Sub­section (1) of Section
13 of the Act, it is not as though the cruel treatment for any
particular duration or period has been statutorily stipulated
to be necessary. As to what constitute the required mental
cruelty for purposes of the said provision, in our view, will
not depend upon the numerical count of such incidents or
only on the continuous course of such conduct, but 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. If the taunts, complaints and reproaches
are   of   ordinary   nature   only,   the   Courts   perhaps   need
consider   the   further   question   as   to   whether   their
continuance or persistence over a period time render, what
normally would, otherwise, not be a so serious an act to be
so injurious and painful as to make the spouse charged with
them   genuinely   and   reasonably   conclude   that   the
maintenance   of   matrimonial   home   is   not   possible   any
longer. A conscious and deliberate statement leveled with
pungency and that to placed on record, through the written
statement, cannot so lightly be ignored or brushed aside, to
be of no consequence merely because it came to be removed
from   the   record   only.   The   allegations   leveled   and   the
incidents enumerated in the case on hand, apart from they
being per se cruel in nature, on their own also constitute an
admission   of   the   fact   that   for   quite   some   time   past   the
husband had been persistently indulging in them, unrelated
and unmindful of its impact. That the husband in this case
has treated the wife with intense cruelty is a fact, which
became   a   fait   accompli   the   day   they   were   made   in   the
written statement. They continued on record at any rate till
5.10.1988   and   the   indelible   impact   and   scar   it   initially
should have created, cannot be said to have got ipso facto
dissolved,   with   the   amendments   ordered.   Therefore,   no
exception   could   be   taken   to   the   courts   below   placing
reliance on the said conduct of the appellant, in this regard,
to record a finding against him.”
Similarly, the Apex Court in V. Bhagat vs. Mrs. D. Bhagat1
 has observed
in paras 7, 10, 11, 17 and 20 as under:­
“7.   In   this   application   (I.A.   No.   1   of   1993),   this   Court
directed on May 3, 1993, both the parties to be present in
person in the Court with a view to explore the possibility of
a   settlement.   On   the   next   date,   i.e.,   May   7,1993,   the
1 AIR 1994 SC 710
respondent was not present. The matter was adjourned to
July 19,1993. On July 19, 1993, the parties were heard for
some time and the Court suggested to the parties to find a
via­media   to  settle  the  matter.  The   parties   sought   for a
adjournment. The matter was adjourned to August 6, 1993.
On 6th August, the matter was again adjourned to 16th
August on which date we were told that the parties could
not arrive at any settlement, whereupon the arguments of
the counsel for the parties were heard. In the background of
the orders of this Court made in this I.A., referred to above,
learned   Counsel   for  the   petitioner  reiterated   his   plea   to
grant a divorce on the ground of cruelty evidenced by the
averments in her counter and the questions put to him in
the cross­examination. Counsel submitted that the marriage
between the parties has broken down irretrievably. Having
regard to the nature of allegations and counter allegations
made by the parties against each other, there is hardly any
room for their coming together. The petitioner has been
trying to obtain divorce right from the year 1980. For five
years   he   tried   to   get   it   by   consent,   failing   which   he
approached   the   Court.   Eight   years   have   passed   by   and
inspite of the repeated order of this Court, even the trial is
not yet over. The petitioner is now 55 years old. A good
part of the life of both the parties has been spent in rancour
and litigation. De hors the allegations of adultery originally
made in the petition for divorce, the petitioner is entitled to
divorce on the basis of the additional ground put in by way
of amendment viz., cruelty ­ mental cruelty by wife. The
averments made in her counter and the question put by her
counsel   in   the   cross­examination   of   the   petitioner   do
constitute   clear   acts   of   cruelty.   In   view   of   the   said
averments/questions,   no   further   material   is   necessary   to
establish   the   said   additional   ground.   In   her   written
statement, the respondent has alleged that the petitioner is
"suffering from mental hallucination" that his is a "morbid
mind for which he needs expert psychiatric treatment" and
further   that   "the   petitioner   is   suffering   from   paranoid
disorder. He needs expert psychological treatment.... He is
in   coherent   in   his   thinking....The   Petitioner   is   a   mental
patient. The petitioner needs treatment by a psychiatrist to
whom he was directed by his own sister....He is a patient
and   needs   treatment   and   restoration   of   normal   mental
health....The   petitioner   needs   psychological   treatment   to
make him act a normal person" and so on and so forth. In
the cross­examination of the petitioner, the Senior Advocate
appearing   for   the   respondent­wife   put   several   questions
suggesting that the petitioner and the several members of
his family including his grandfather are lunatics and that a
streak of insanity is running in the entire family. When he
protested   against   the   said   questions,   the   leaned   Senior
Advocate made the following statement in the Court ­ "all of
your (petitioner's) family including your grandfather and
other are lunatics with streaks of insanity running in the
entire family; this is the respondent's case; and that is why
these questions have been asked. " The said questions were
put and the said statement was made by her Advocate at
the   instructions   of   the   respondent.   Notwithstanding   the
dismissal of a similar application by the Delhi High Court
and the dismissal of a special leave petition there against by
this Court, this is a fit and proper case ­ and this is the most
appropriate   stage   at   which   ­   the   petitioner   should   be
granted divorce on the ground of cruelty. The situation has
become intolerable, says the counsel.”
“10.   That   this   is   a   rather   unusual   case   can   hardly   be
disputed. The divorce petition has been pending for more
than 8 years. With a view to expedite its disposal it was
transferred from the District Counter to the High Court.
This Court repeatedly requested (in 1987 and 1991) the
High Court to try the matter on a day­to­day basis and
dispose it of expeditiously. The petition is still at the stage
of trial. It is not possible for us to apportion the blame. Each
side attributes it to the other. Five learned Judges of the
High Court have tried their hand at the case, but it still
remains at the stage of trial. The cross­examination of the
petitioner alone took one full year. The cross­examination
of the respondent is yet to begin. Having regard to the
number of allegations made by the petitioner in his divorce
petition and the material relied upon by him, it may safely
be presumed that the cross­examination of the Respondent
would take as much time as the cross­examination of the
petitioner, if not more. Each party, it appears, is out to
punish the other for what the other is supposed to have said
or done. This appears to be the single thought ruling their
lives today. A good part of the life of both the parties is
consumed in this litigation and yet the end is not in sight.
The assertion of the wife that she wants to live with the
husband even now, appears to be but a mere assertion.
After all the allegations made against her in the petition and
the allegations levelled by her against the petitioner, living
together is out of question. Rapprochement is not in the
realm of possibility. For the parties to come together, they
must be super humans, which they are not. The parties have
crossed the point of no return long ago. The nature of the
allegations levelled against each other shows the intense
hatred and animosity each bears towards the other. The
marriage   is   over   except   in   name.   The   desirability   of
allowing the continuation of the divorce proceedings in the
particular facts and circumstances of this case, is open to
grave doubt. The matter may take more than a year ­ at the
minimum ­ to conclude in the High Court and then there is
the right of appeal to the losing party. Both the parties are
well­settled. The children are grown­up and are on their
own.”
“11.     The   question,   however,   is   whether  the   allegations
made by the respondent­wife do constitute mental cruelty.
The allegations in her written statement and her counsel's
explanatory statement in Court have already been set out
hereinabove. The respondent has asserted in her written
statement   that   she   "has   every   right   to   make   correct
statement of facts to defend herself against the wanton,
imaginary and irresponsible allegations".
“17.   Mental cruelty in Section 13(1)(1­a) 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   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 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.”
“20.   In   Smt.   Chanderkala   Trivedi   v.   Dr.   S.P.   Trivedi
(1993(3) SCALE 541) the husband sued for divorce on the
ground   of   cruelty   by   wife.   The   wife   filed   a   written
statement wherein she attributed adultery to the husband.
In reply thereto the husband put forward another allegation
against the wife that she was having undesirable association
with young boys. Considering the mutual allegations, R.M.
Sahai, J., speaking for Division Bench, observed:
“Whether the allegation of the husband that
she was in the habit of associating with young
boys and the findings recorded by the three
courts are correct or not but what is certain is
that once such allegations are made by the
husband and wife as have been made in this
case then it is obvious that the marriage of the
two cannot in any circumstance be continued
any further. The marriage appears to be
practically dead as from cruelty alleged by the
husband it has turned out to be at least
intimacy of the husband with a lady doctor and
unbecoming conduct of a Hindu wife.””
22. In the present case, we find that all these allegations which are
made by the husband in the Written Statement and in the Petition
under  Section   9   clearly   amount   to   cruelty   and   would   have   to   be
treated as instances of  cruelty.    On  both these grounds therefore,
Respondent/wife has established her case against her husband and
therefore the learned Judge of the Family Court after going through
the evidence has rightly held that the Respondent/wife has proved her
case and therefore granted decree of divorce in her favour.
23. It is quite surprising that on the one hand, Appellant/husband
wants to stay with the wife   and has contested divorce petition and
pursued the appeal which is filed by him and has also filed a Petition
for restitution of   conjugal rights and on the other hand in the said
Petition as well as in the Written Statement allegations have been
made by him against her which are truly scandalous to say the least.
From   all   the   circumstances   which   have   come   on   record,   the   only
inference which can be drawn is this that the husband only wishes to
harass the wife till the end and is really not interested in happily
residing with her.
24. So far as the judgments on which the reliance is placed by the
learned Counsel for the Appellant are concerned, there is no dispute
regarding the ratio of these judgments.   It is well settled that the
judgment of either High Court or Apex Court cannot be treated as a
precedent unless facts in that case and the facts in the case in hand are
identical.  The Apex Court in  Zee Telefilms Ltd. and another vs. Union
of India and others1
 has observed that the judgment should not be read
as a statute book and even if there is a slight difference in the  facts of
the case or situation and circumstances under which the judgment was
delivered, it is not permissible to take out some stray sentences from
the   judgment   and   apply   them   to   the   facts   of   the   case   in   hand.
Therefore,   though   there   is   no   dispute   regarding   ratio   of   those
judgments on which reliance is placed by the learned Counsel for the
Appellant/husband, we are of the view that the said judgments will
not apply to the facts of the present case.
1 (2005) 4 SCC 649
25. We must take note of  another disturbing feature which we have
noticed in this case is that for the purpose of gaining her freedom from
an oppressive husband who apparently has chosen to treat the wife as
his   slave   displaying   male   chauvinistic       tendency   by   continuously
harassing her and treating her  like a dog on a leash,  she had begged
to let her go and live independently and for that purpose she withdrew
the written complaint which she had filed with the police which is at
Exhibit­41 only because the husband had promised her that he would
give her divorce by mutual consent and only on that assurance the said
complaint   was   withdrawn.     In   the   cross­examination   when   this
question was asked to her, she had given her explanation  as to why
she had withdrawn this complaint. She even made a statement that
she would not claim any maintenance; past, present or future or any
share in the property and would also resign from the partnership firm
where she was a partner alongwith her husband.  However, husband's
heart did not melt down by this offer made by the wife.  The wife did
not stop there.  She even gave up her right to see her only son which
normally no mother would accept but she even chose to give up her
rights over the custody of her only son.   The question which falls
before us is, why would this  woman would go to such an extent of
forgiving every thing to get freedom?  In spite of this,  the husband
was   not   moved   and   he   has   chosen   to   again   raise   fictitious   and
imaginary objections in the Consent Terms and finally put his foot
down.  Parties always are at liberty to litigate and no one can compel a
party   to file  Consent Terms.    We  have therefore  heard both  the
learned Counsel appearing on behalf of both the parties at length.
26. For the reasons stated above FCA No.58 of 2015 is  dismissed.
Since   the   Family   Court   Appeal     No.58   of   2015   is   dismissed   and
disposed of, Family Court Appeal (Stamp) No.27753 of 2016 filed by
the husband for restitution of conjugal rights does not survive and it is
also disposed of.  However, we do not propose to impose any cost on
the Appellant/husband since imposition of cost will not change the
mental attitude of the Appellant/husband.
27. In view of dismissal of both these appeals, Civil Application filed
by the wife for maintenance and for other reliefs will not survive. It is
accordingly   disposed   of.     However,   it   is   clarified   that   the
Respondent/wife   is   at   liberty   to   take   out   appropriate   separate
proceedings before the appropriate forum seeking the relief which she
has claimed in the Civil Application
28 The   learned   Counsel   appearing   on   behalf   of   the
Appellant/husband requests for stay of this judgment for a period of
six weeks.  In our view, question of granting stay does not arise since
both the appeals have been dismissed.   The learned Counsel for the
Respondent/wife submitted that there was no stay operating till today.
Moreover, no stay has been asked for in the High Court.
29. Both these appeals are accordingly disposed of.  Since both these
Appeals are disposed of,  Civil Applications taken out therein do not
survive and they are also disposed of accordingly.
 (MRS. SWAPNA S. JOSHI, J. ) (V.M. KANADE, J.)
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