Friday, July 18, 2014

Together ONLY 7 mnths, fighting 10 years, DV, 498a pack, still DIVORCE DENIED!! Wear and Tear of life gentlemen ...the rough and tumble of it !!



They lived together ONLY for 7 months, they have been fighting in courts for approx 10+ years, Husband has suffered DV, 498a package, and / or police calls , threats. Still the HC  says most of these are wear and tear of life and DIVORCE DENIED!!
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* marriage 13.3.2000
* matter get so bad so soon that, families had to hold meeting on 4.10.2000 !!
* things do not improve
* they live together last some time between April and July, 2002
* there are allegations of wife and cousin trying to beat up the husband
* there are similar counter allegations from wife
* Husband says. DV and 498a package filed by wife. Police certificate provided about complaints. However court observes that DV act is ONLY to get money and residence and IS NOT cruelty !!
*


Bombay High Court

Ou vs H on 25 January, 2010

Bench: D.B.Bhosale, R.Y. Ganoo

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 109 OF 2007

Latesh Subhash Kadam of .. Appellant ,
Hindu, Indian Inhabitant, residing at Asgar Manzil, Room No.21, Jerbai Wadia Road,
Bhoiwada Naka, Parel, Mumbai-400 012.

Vs

Neesha Latesh Kadam of .. Respondent Mumbai,
Hindu, Indan Inhabitant, residing at 165/8/16,
Shahu Nagar, Anr.Renuka Mandir, Godoli, Satara City, Dist-Satara.

Smt A. R. Lambey i/b Smt A. S. Khushrushahi, Advocate for the appellant.

Shri Dilip Bodake, Advocate for the respondent.

CORAM : D.B.BHOSALE AND R.Y.GANOO,JJ.

DATE : 25/01/2010.

ORAL JUDGMENT : (Per D.B.BHOSALE,J.)

1. The appellant-husband has filed this Family Court Appeal against the Judgment and order dated 11.5.2007 passed by theFamily Court in Petition No. A-892 of 2002, whereby this petition seeking divorce on the ground of cruelty, as provided forunder section 13(1)(i-a) of the Hindu Marriage Act,1955 (for short, "the Act") has been dismissed.

2. The matrimonial alliance was entered into between the appellant-husband and the respondent-wife as per Hindu rites and rituals at Satara, District-Satara on 13.3.2000. Parties have no issue from the said wedlock. The appellant and his family, though hail from district-Satara, are residents of Mumbai. The appellant, at the relevant time, was working in Mumbai. After their marriage at Satara, they came to Mumbai on 20.3.2000. Itis the case of the appellant that since solemnization of the marriage, the attitude, conduct and behaviour of the respondent-wife towards him as well as his family members wasrude, adamant and annoying. Right from the day of the marriage, according to the appellant, the respondent was arrogant and rude with him as well as with his family membersand she started taunting him over his educational qualification. The respondent is an M.A., whereas the appellant is only a Diploma Holder. All these allegations have been denied by the respondent. According to the respondent, right from beginning, she started doing all household work like sweeping, cleaningutensils, cooking, washing cloths of the entire family etc. She tried to keep every one in the family happy and satisfied. She had good relationship with the appellant, however, at the instance of his parents, he started behaving indifferent right from the beginning. There is no dispute that the marriage was consummated. It appears that in view of the peculiar nature of job, which the appellant was doing at the relevant time, frequently he used to go abroad and also in and around India as a part of his job. After their marriage, the respondent left the matrimonial home last some time between April and July, 2002. From the date of marriage till she last left the matrimonial home, according to the respondent, they both stayed togetherfor hardly seven months. The respondent-wife claims that she never refused to perform her matrimonial obligations or even had shown her intention to deprive the appellant of conjugalrights. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. It is against this backdrop, the appellant instituted thepetition for divorce on the ground of cruelty. Apart from her day-to-day arrogant and rude behaviour, the appellant has relied upon the following instances, as alleged in the pleadings and the evidence: Firstly, it is contended that because of the respondent's typical behaviour, both the families had to hold meeting on 4.10.2000 to sort out the differences between the two. Next it is alleged that on 12.5.2000 the respondent heldthe appellant's collar and threatened him that if he did not stay with her properly, she would cause harm to him and his family members. Thereafter, on 7.1.2001, it is alleged that the respondent's cousin -Ravi, when brought her to Mumbai from Satara, threatened the appellant stating that he had handled plenty of such family disputes in his own way and looking to the appellant's good nature he was keeping quite. Lastly, it is alleged that on 1.1.2002 the respondent and her cousin Ravi brought about fifteen persons to the appellant's house in Mumbai and threatened him stating that he had not married therespondent only for getting house-hold work done. Apart from these four incidents, the learned counsel for the appellant also made reference to the case/complaint filed by the respondentagainst the appellant under the Protection of Women from Domestic Violence Act, 2005, which, according to the appellant, caused mental cruelty to him and his family members. Areference to the calls allegedly made by the Medha Police Station to the appellant and his father was also made to contend that the calls were made by the police at the instant of the respondent, which made him and his family to suffer mental  trauma. In the backdrop of these facts, the petition was filed bythe appellant-husband on 20.1.2004.

4. We have heard learned counsel for the parties and, with their assistance, perused the entire material/evidence on record.

Ms Lambey, learned counsel for the appellant after taking us through the pleadings and the evidence, submitted that right from beginning the attitude, conduct and behaviour of the respondent towards the appellant as well as his family members was arrogant, rude and non cooperative, which caused harassment and cruelty not only to the appellant but even to his family members. She further submitted that the attitude of the respondent-wife towards her in-laws was also arrogant andhumiliating. She invited our attention to several instances cited by the appellant and his father in their evidence in respect of her conduct and behaviour which, according to the appellant,were in the nature of mental cruelty. It was also urged that all throughout the respondent was conscious and mindful of her education and she used to tauntthe appellant and other members of the family. She submitted that cumulative effect of the facts and circumstances emerging from the evidence on record, are sufficient to draw a fair inference that the respondent undoubtedly caused cruelty and harassment to the appellant and his family members. Her rudeand arrogant conduct made it impossible for the appellant to live with the respondent. In other words, the situation was suchthat the respondent-wife cannot reasonably be asked to put up with such conduct and continue to live with the appellant. She submitted that frequent rudeness of language and neglect made the married life of the appellant absolutely intolerable. She then submitted that absence of intention should not make any difference in the case and it is not necessary element in cruelty. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Learned counsel for the appellant in support of her contentions, placed reliance upon the following judgments: Rishikesh Sharma Vs. Saroj Sharma, (2007) 2 Supreme Court Cases 263; Suman Kapur Vs Sudhir Kapur, 2009 (1) SCC 422; ShobaRani V Madhukar Reddi, (1998) SCC 105. Reliance was also placed on some judgments to contend that the marriage between the appellant and the respondent has broken irretrievably and,therefore, on that ground also a decree of divorce deserves to be passed in the present case.

5. On the other hand, Mr Bodake, learned counsel for the respondent-wife, submitted that even if it is assumed that whatever has been stated by the appellant-husband and his father in their testimonies is true, none of the incidents narrated by them is more than ordinary wear and tear of married life. He then submitted that none of the incidents has been proved by the appellant by leading cogent evidence. Mr Bodake then submitted that right from inception, the attitude of the appellant towards the respondent-wife was indifferent for the reasons known to him. Within less than eight days from the date of marriage he started talking about divorce. That itself is an indication that whatever incidents he has narrated in his deposition are false and imaginary. There was no reason for the respondent-wife to behave in the manner as stated by him and his father right from the second day of marriage. As a matter of fact, from her conduct it is clear that she was and is eager to lead happy married life with the appellant. He then submittedthat in any case it cannot be stated that it is impossible for the appellant to live with the respondent. He then invited our attention to the judgment of the Supreme Court in Vishnu DuttSharma Vs Manju Sharma in Civil Appeal No.1330 of 2009 (Arising out of SLP (C) 13166 of 2007) decided on 27.2.2009, to contend that this court has no jurisdiction to pass decree on the ground of irretrievable break down of marriage or that it is a dead marriage. He also placed reliance upon the judgments of the Supreme Court in V. .Bhagat V. D.Bhagat, 1994 AIR SCW 45 and Naveen Kohli Vs Neelu Kohli, 2006  AIR SCW 1550.

6. The appellant-husband, in support of his case, examined himself and his father - Subhash Laxman Kadam. On the other hand, the respondent-wife examined herself. We have perused the depositions of all the witnesses so also the pleadings and other documents on record with the assistance of learned counsel for the parties.

7. The first incident relied upon by the appellant in order to prove cruelty is dated 4.10.2000. On this date, according to the appellant, a meeting was held at Satara to sort out the alleged differences between the appellant and the respondent. This meeting is relied upon by the appellant in order to contend that till 4.10.2000, there were several unpleasant incidents, which forced both the families to meet for sorting out the alleged differences between the two. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. The appellant, in his deposition, stated that right from beginning, the respondent was arrogant and rude with him and his family members. The marriage was solemnised on 13.3.2000. On 15.3.2000, after Satyanrayan puja, the respondent was required to clean utensils with other members of the family, when she allegedly complained to the appellant that her handshad become black. She was reluctant to join other members of the family in cleaning the house, since she did not like to do such type of work. Even at the time of puja, according to the appellant, the respondent got annoyed with his sister when she made her wear the neckless. The appellant further stated that on 16.3.2000, when they were going for Dev Darshan, the respondent pressurised him to drive the car though his eye- sight was weak. While on their way to the temple, she, according to the appellant, sat next to him and put her hand on his thigh which he did not like. Thereafter, he stated that a girl from his neighbourhood, who used to visit their house frequently, passed comment that the respondent was careless, and on that the respondent got annoyed and reacted stating that she was M.A and she (the girl) need not teach her. When the appellant tried to pacify the respondent, she allegedly insulted and ridiculed the said girl.

9. In the cross-examination, the appellant admitted that thegirl from his neighbourhood-Pinki did not have authority to make such comment, but he further added that he did not find anything objectionable in the comment made by her. The respondent in her evidence denied these incidents totally. She specifically stated that the incidents, as narrated by theappellant, are false. Even if all the incidents, allegedly occurred before the couple came to Mumbai on 20.3.2000, are assumed to be true, we do not find them of such a character and gravity so as to say that it would be impossible for them to live together without mental agony or torture. In our opinion, no wife/daughter-in-law within less than eight days from her marriage, would behave in such manner and even if it is assumed that she did behave in this manner, as stated by the appellant, it was nothing but ordinary wear and tear of married life and no importance can be attached to such incidents for granting divorce on the ground of cruelty.10. Thereafter, on 20.3.2000 they all came to Mumbai. In Mumbai, there was again Satyanarayan puja on 23.3.2000. On this occasion, the respondent allegedly insulted his friends. The respondent-wife specifically denied the incident and stated that in fact she had free interaction with the appellant's friends on the issue of girls from villages. On 25.3.2000 there was awedding reception. It is alleged that on this occasion also when the appellant requested the respondent to get ready soon, she arrogantly replied stating "don't you see that I am getting ready". According to the appellant, he was insulted by the respondent in the presence of his relatives. This incident wasalso denied by the respondent. He quoted one more incident stating that the respondent took water pot used in WC andmixed up the same with other utensils. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. Thereafter, the appellant and the respondent went to Mahabaleshwar on 5.4.2000 for honeymoon where, according to the appellant, the respondent ridiculed him by comparing with other couples. He further stated that the respondent's behaviour at Mahabaleshwar disturbed him a lot and, therefore, he was reluctant to have sex with her. According to the appellant, the respondent, however, forced him to have sex against his wish. The appellant further stated that therespondent did not have any love and affection for him. As a matter of fact, we find this behaviour of the appellant not only strange but unnatural. We are at loss to understand as to howone could behave in this manner on honeymoon tour.

12. Insofar as the allegation that the respondent ridiculed the appellant by comparing them with other couples at Mahabaleshwar is concerned, the respondent denied it in her evidence. According to the respondent, as stated by her in examination-in-chief, at Mahabaleshwar the appellant asked her for divorce stating that he wanted a wife, who knew English andwho could operate computer. In the cross-examination, the appellant admitted that the respondent told him that there wasno cause for divorce and he should not speak about divorce. As a matter of fact, it has come in the evidence of the appellant so also in the evidence of the respondent that after they returned from Mahabaleshwar, the respondent joined classes to learn English and computer, and she was regularly attending the classes. In fact, after the appellant left for South Africa some time in May, 2000, the mother of the appellant stopped her from attending the classes. The suggestion to that effect, though was denied by the appellant in his evidence, the fact remains that the respondent, as desired by the appellant, was eager to learn English and Computer.

13. The appellant then quoted the incident allegedly occurredon 12.5.2000. On this date, the appellant was telling the respondent to maintain decorum and harmony in the house, when, it is alleged, that the respondent became violent andrushed to the appellant, held his collar and threatened him stating that if he did not live with her properly, see what would she do to him, his sister and other family members. She also allegedly threatened him stating that the people at her village were very dangerous. This incident, according to the appellant,shook and shocked the appellant's family. The respondent, however, stoutly denied this incident. It is against thisbackdrop, according to the appellant, the meeting dated 4.10.2000 was held at Satara. In the meeting also it is alleged that there were heated arguments between the respondent and her family members. According to the appellant, all throughout in the meeting, she was arrogant and rude and was not prepared to budge. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14. After the marriage, in May 2000, the appellant left for South Africa. In his absence, the respondent was sent to Satara in August, 2000 for Nagpanchami. There are no allegations ofany nature whatsoever, against the respondent during the period between May, 2000 and August, 2000. After the appellant returned to India, it appears that the respondent was not eveninformed about his arrival. It is stated in the cross-examination that immediately after he returned to India, within a week he went to Satara on 8.10.2000. Similarly, the appellant's fatheralso, in his cross, stated that they went to Satara on 8.10.2000. The admission given by both, in their cross, creates doubt about the meeting dated 4.10.2000. The appellant further stated that he returned to Mumbai without the respondent. It appears that he was completely ignorant about the telephone calls made during the period by the respondent's father to his father. He was also ignorant about the efforts made by the respondent'sfather to send the respondent back to Mumbai at the time of Diwali and even thereafter and that his father had told the respondent's father that he should not bring her to Mumbai. He further stated that he was not aware whether the respondent ever expressed her desire to return with them to Mumbai. He, however, admitted that the respondent's father brought her to Mumbai on 7.1.2001. Within few days thereafter, as stated in paragraph 32 of the cross, he again left the country once again and returned in July 2001, and then again he went abroad in August, 2001 and returned in December, 2001.

15. According to the respondent, after the appellant came back to India some time in October, 2000, she was not even informed about his arrival. She came to know about his arrival only when the appellant's uncle informed her father on telephone that the appellant along with his parents was at Bamnoli in their uncle's house and were coming to Satara, which they did on 8.10.2000. This evidence has not been challenged by the appellant in the cross-examination. This further creates doubts about the alleged meeting held on 4.10.2000 at Satara. As a matter of fact, the respondent was eager to go with the appellant and his parents to Mumbai but she was told to come to Mumbai after Diwali. Even after Diwalishe could not and did not go to Mumbai. She stated that when she expressed her desire to come to Mumbai, the father of the appellant stated that "what do widows do when they loose their husbands". The appellant and his father denied these utterances in their evidence. However, the fact remains that the father of the respondent had to take her to ig Mumbai on 7.1.2001. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

16. This takes us to consider the next incident on which the learned counsel for the appellant heavily relied upon to contendthat this incident not only frightened but terrified him and his family. The incident is dated 7.1.2001. The appellant as well as his father in their evidence stated that when the respondentwas brought to Mumbai by her father and cousin Ravi, her cousin during the discussion stated that he had handled plenty of such family disputes in "different way", however, looking tothe appellant's good nature, he was keeping quite. This threat, according to the appellant, disturbed and terrified the family. The respondent thereafter stayed with the appellant and his family for few months. The appellant in paragraph 11 has stated that after she came on 7.1.2001, on the very next day, therespondent asked him to forget everything and have sex to have baby. After she came back till she again went back to Satara,there were no allegations against her. On the contrary the appellant stated that she returned to fulfill her obligations and duties as a wife. The subsequent conduct of the respondent so also the evidence, creates doubt about what the appellant stated regarding the alleged utterances of the respondent's cousin Ravi. The respondent, however, denied all these allegations. According to the respondent, she came to Mumbai along with her father to lead happy married life. She did not state anything about her cousin Ravi and the alleged threats. Even if it is assumed that the incident of 1.7.2001 did occur inthe manner, as stated by the appellant and his father, we do not find it as serious as to lead the appellant to seek divorce on the ground of cruelty.

17. The appellant has then relied upon the incident dated 1.1.2002. The appellant and his father, both, in their evidence stated that on 1.1.2002 the respondent's father and brotherbrought about 15 persons to their house and there were heated arguments between them. It is alleged that the respondent's cousin Ravi threatened the appellant stating that he had not married the respondent for getting only the household work done and that he would see as to how he would go abroad. Healso allegedly abused and insulted the appellant. Thereafter, they all went back leaving the respondent with the appellant inMumbai. Thereafter, she stayed with the appellant till April, 2002. According to the appellant, she left in April, 2002 last, whereas, according to the respondent, she was taken by the appellant's father to Satara on 27.7.2002. Even if the date given by the appellant is taken to be true, there are no allegations of any nature whatsoever between January 2002 and July, 2002.

18. We have also perused the affidavit of the appellant's father Subhash Kadam filed in lieu of examination-in-chief. His examination-in-chief is, by and large, consistent with the evidenceof the appellant. He also narrated all those incidents, which were narrated by the appellant in his evidence. In the cross- examination, he admitted that some incidents, which werenarrated by them, were not mentioned in the petition. He further admitted that the respondent used to cook in the house and was also doing work of sweeping, swabbing, dusting, going to themarket etc and also used to get involved in all type of household work. He also admitted that when he had gone to Satara in 2000 after Diwali, the respondent had expressed her desire to come to Mumbai when he told her not to come with them. It was further admitted in the cross examination that she came to Mumbai on7.1.2001. However, he denied the suggestion that during the meeting in January 2002, when 15 persons including therespondent's father and cousin had allegedly gone to their house, they told the respondent's father to take the respondent back to Satara. He then stated that the respondent continued to stay with them till April, 2002. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. The respondent denied not only the allegations but even the incidents quoted by the appellant and his father in their evidence, which allegedly occurred during her stay with them. It is her case that no such incidents, as testified by the appellant and his father, ever occurred. The evidence of these two witnesses, though to alarge extent, seem to be consistent, the question is whether the alleged conduct of the respondent and the incidents quoted in the petition so also in their testimonies by these witnesses wouldconstitute cruelty and they were to such an extent so as to grant divorce. Though, according to the learned counsel for the appellant, the aforementioned events were grave and weightyso as to come to the conclusion that the appellant cannot be reasonably expected to live with the respondent, she could not pinpoint a single incident which, according to her, was grave. Undoubtedly, she submitted that the incident dated 12.5.2000 was grave but, in our opinion, that incident has notbeen proved by the appellant. Apart from the fact that the said incident was unbelievable, neither the appellant nor his fathermade reference thereto any time thereafter including in the letters addressed to the Bhoiwada police station (Exhibits 22 and 23).

20. We have perused the letters (Exhibits 22 and 23) written by the appellant and his father to Bhoiwada police station. From the contents of the letters, it appears that the letters were given to the police station by way of abundant precaution and in order to obtain certificate from the police station that no complaint under section 498A had been filed against them by the respondent. It is true that the father in his letter dated 10.8.2002 made referenceto the alleged calls received from Medha police station. However, over and above this, no other material is brought on record to show that any complaint was lodged with the Medha police stationand/or calls were made by the Senior Police Inspector to the appellant or to his father. In sofar as the letter dated 20.8.2002 (Exhibit 23) is concerned, it is written by the appellant. It is very interesting to note that in the letter he had stated that after the marriage, initially they had very smooth/happy married life. From the contents of the letter, it is clear that no reference to any of the incidents referred to and relied upon by the appellant and his father in their evidence was made by them in these letters. Noreference was made to the incidents dated 12.5.2000 or 1.1.2002.21. Even if it is assumed that all the aforementioned incidents did occur in the manner, as stated by the petitioner and his father, still in our opinion, the conduct of the respondent was not of such a character and gravity so as to give rise to a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with her or it would be impossible for them to live together without mental agony or torture. In other words, the respondent's conduct was not such that no reasonable person would tolerate it. Parties to the marriage, tying nuptial knot, are supposed to bring about theunion of two souls. It creates a new relationship of love, affection, care and concern between the husband and wife and that it brings two families together. Such ties cannot be allowed to be severedon the grounds/incidents/conduct which are ordinary wear and tear of matrimonial life. None of the aforementioned incidents or conduct of the respondent, in our opinion, could be termed as"grave and weighty" to be treated as the cause for cruelty. It is true that the word "cruelty" is not defined and, therefore, it is not possible to say as to when the conduct of other spouse constitutes cruelty, however, the door of cruelty cannot be opened so wide otherwise divorce will have to be granted in everycase for incompatibility of temperament. That was not the intention of Legislature when the ground of cruelty was madeavailable for seeking a decree of divorce. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

22. The learned counsel for the appellant in the course of argument also relied upon two more incidents, namely, the alleged complaint lodged by the respondent with Medha police station, and secondly, the complaint under the Domestic Violence Act allegedly lodged by the respondent. Insofar as the complaint with the Medha police station is concerned, the respondent has denied to have lodged any such complaint. The appellant has not produced any material on record to show that any such complaintwas filed by the respondent. Merely because Bhoiwada police station issued a certificate in response to the letters (Exhibits 22 and 23) issued by the appellant and his father, does not mean that the respondent had filed complaint with the Medha Police Station. This allegation, in our opinion, is baseless, unfounded and made only with a view to bring additional material on record forseeking divorce on the ground of cruelty. Similarly, the petition under the provisions of the Domestic Violence Act, was filed only for maintenance and her right of residence. She did not make any allegation against the appellant in the said petition so as to lead him to seek divorce on the ground of cruelty. It is pertinent to note that the appellant has not challenged the order passed in those proceedings in appeal and has been paying maintenance to therespondent regularly.

23. We have perused the respondent's evidence very carefully. It appears that she is very keen to join and stay with the appellant. She has specifically stated that she never had any grievance against the appellant and even the appellant did not have any grievance against her. She has stated that they are made for each other and they are good couple and deserve to stay together. She has further stated that she used to do all household work with other family members and did her best to keep her in-laws happy and satisfied. In her opinion, the appellant was indifferent with her at the instance of his parents.24. The conduct of a wife has to be considered in the background of several factors, such as, social status of theparties, their education, physical and mental condition, customs and traditions. If all that is taken into consideration, in this case, the conduct of the respondent, in our opinion, was not as grave as to come to the conclusion that no reasonable person would tolerate it. It is well settled that every matrimonial conduct,which may cause annoyance to the other spouse, may not amount to cruelty and we are satisfied that the intensity of therespondent's conduct is not to the extent so as to come to the conclusion that the petitioner cannot reasonably be expected to live with her. (See Arundhati D Patil Vs D.B.Patil, 2008 (5) All M.R. 702) http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

25. In Suman Kapur's case (supra), the Supreme Court, after considering several judgments including some of the judgments which were also cited before us by learned counsel for the parties, has observed that if it is mental cruelty, the enquiry must begin as to the nature of the cruel treatment and then as to the impact ofsuch treatment on the mind of the other spouse. Whether it caused reasonable apprehension that it will be harmful or injurious for him to live with the respondent ultimately is a matter ofinference to be drawn by taking into account the nature of conduct and its effect on the complaining spouse.26. Whether one spouse has been guilty of cruelty to other is essentially a question of fact and previously decided cases have little, if any, value. The Court is expected to 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 andconduct of one spouse on the mind of the other weighing all incidents and quarrels between the spouses from that point ofview. 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. (See Halsbury's Laws of England (Vol 13, 4th Edition, para 1269). 27. In V. Bhagat V D.Bhagat case (supra), the Supreme Court had an occasion to examine the concept of "mental cruelty".

Paragraph 17 of the Judgment reads thus: "Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the otherparty such mental pain and suffering as would make it impossible 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 suchconduct 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 ofthe 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 decided 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."28. The Supreme Court in Naveen Kohli Vs. Neelu Kohlicase (supra), while dealing with an appeal arising from a matrimonial petition filed by the husband seeking a decree of divorce on the ground of cruelty, has observed that "the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage, Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particulars case andas noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it". In the present case, none ofthe incidents or the alleged conduct of the respondent could be termed as intolerable. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

29. In Shoba Rani V Madhukar Reddi, (1998) SCC 105, the Supreme Court had an occasion to examine the concept of cruelty.In this case, the Supreme Court has interpreted the word "cruelty". The "cruelty" which has not been defined in the Act, though it hasbeen specifically used in section 13(1)(ia) of the Act. The Supreme Court observed that "the cruelty is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical,it is a question of fact and degree. 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 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 onthe 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 spouseneed 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, ifby 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 willful ill-treatment".

30. In A. Jayachandra Vs Aneel Kaur, 2005 AIR SCW 163, a three Judges Bench of the Supreme Court while dealing with theexpression "cruelty" observed that if from the conduct of spouse it causes an apprehension in the mind of other spouse about his or her mental welfare, then such conduct amounts to cruelty. We do not find any such case having been made out by the petitioner. It is well settled that the conduct of the spouse must be something more serious than ordinary wear and tear of married life. 31. The conduct of the respondent, in our case, does not constitute cruelty. As a matter of fact, most of the incidents relied upon by the petitioner, in our opinion, are insignificant or triflingand it cannot be said that they had touched a certain pitch of severity. In any case, it cannot be stated that the conduct of the respondent was such that no reasonable person would tolerate it.32. It is true that the approach of the court should be to take the cumulative effect of the facts and circumstances emergingfrom the evidence on record 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. In the present case, even the cumulative effect of the facts and circumstances emerging from the evidence of the appellant and his father, in our opinion, is not sufficient to hold that the appellant was subjectedto mental cruelty due to the conduct of the respondent. The trial court, in our opinion, has assessed and appreciated the entire material on record including the depositions of the parties in proper perspective and has rightly dismissed the petition filed by the appellant seeking divorce on the ground of cruelty. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

33. it is now well settled that even if a marriage is totally dead or irretrievably brokendown, this court has no jurisdiction to pass decree on that ground. Such order at most could be passed only by the Supreme Court in exercise of the jurisdiction under Article142 of the Constitution (See Sanghmitra Ghosh Vs Kala Ghosh , 2007 (2) SCC 220). The Supreme Court recently has gone a step further and in Vishnu Dutt Sharma Vs ManjuSharma case (supra), in paragraphs 10, 11 and 12 thereof, has observed thus :-

"10. In this connection it may be noted that in Section 13 of the Hindu Marriage Act,1955 (for short "the Act") there are several grounds for granting divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable break down of themarriage has been mentioned for granting divorce.

11. On a bare reading of Section 13 of the Act,reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

12. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not been taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground of divorce. In our opinion, this can only be done by the legislature andnot by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant."

34. In the circumstances, the submission of the learned counsel for the appellant that the marriage of the appellant and the respondent deserves to be dissolved on the ground ofirretrievable breakdown or that it is dead marriage, deserves to be rejected outright. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

35. Before hearing of the appeal commenced we interviewed the parties in our chamber. The respondent-wife, with the humility ather command, categorically stated that she is keen to live with the appellant. The appellant all throughout was saying no withoutoffering any explanation for saying so. He simply stated that he had suffered a lot. The respondent wife, in the chamber also said sorry to her husband for whatever has happened in the past and she requested him to start new inning, to which the response of the appellant was in the negative. Keeping that all in view and considering overall facts and circumstances of the case we are satisfied that the ground of cruelty has not been proved by the appellant and he does not deserve decree of divorce on this ground. In our opinion, even now it is possible for the parties to come together and lead a happy married life. In the result, theappeal is dismissed. In view of the peculiar facts and circumstances of the case, there shall be no order as to costs.

(R.Y.Ganoo,J.)

(D.B.Bhosale,J.)


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