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CASE NO.: Appeal (civil)  877 of 2007

PETITIONER: Smt. Mayadevi

RESPONDENT: Jagdish Prasad

DATE OF JUDGMENT: 21/02/2007

BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI

JUDGMENT: J U D G M E N T  (Arising out of SLP (C) NO. 3686 OF 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.  

       Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Rajasthan High Court at Jodhpur  dismissing the appeal filed by the appellant under Section 28  of the Hindu Marriage Act, 1955 (in short the ’Act’).  

       Background facts in a nutshell are as follows:

       Respondent filed an application for divorce on the ground  of cruelty alleging that because of the acts of cruelty on several  occasions perpetuated by the appellant, the respondent- husband was under apprehension that it would not be  desirable and safe to stay with the appellant and to continue  their marital relationships.

It was, inter-alia, stated in the divorce petition as follows:

       Parties got married according to the Hindu rites on  17.4.1993. The appellant’s father was an employee in the  Railway department and the appellant used to make demands  for money frequently and used to quarrel when money was not  paid. She did not even provide food to her husband or the  children and used to threaten the husband to falsely implicate  him in a case of dowry demand and to kill the children and to  put the blame on the respondent-husband and his family  members. On 23.10.1999 she took Rs.1,05,000/- from the  respondent and acknowledged the receipt of the money in the  diary of the respondent-husband. She used to borrow money  from time to time at the behest of her parents.  From the  wedlock four children were borne namely, Neha, Anu, Khemraj  and Vishnu Sagar. The appellant used to keep the children  tied by ropes and she attempted to throw them down from the  rooftop and used to physically torture them. She was  temperamentally very cruel and used to behave cruelly with  the children also. She always used to threaten that she will  destroy the whole family of the respondent and that there  would be no successor left in the family. On 5.4.2002 at about

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12.00 noon she left her parental home alongwith three  children namely, Neha, Anu and Khemraj on the pretext that  she was going to her parental house which was located in the  same village. Since she did not return till evening as was told  to the respondent-husband, he started searching for her.  During course of search the garments and slippers of the  children and the appellant were found lying near the well of  Ramialji. Police was informed and on search dead bodies of the  three children were recovered from the well and appellant was  also taken out of the well.  A criminal case was instituted and  she was convicted for an offence under Section 302 of the  Indian Penal Code, 1860 (in short the ’IPC’). She was pregnant  at that time and subsequently delivered a child. She filed an  application for bail. While on bail, she filed a false case  alleging dowry demand against the respondent-husband and  his family members. Final report was given by police and it  was observed that a false case had been lodged.  

       The appellant filed her response to the petition for  divorce and contended that no amount was borrowed by her  father or any of her family members. The respondent-husband  used to threaten her for dowry and she had never perpetuated  any cruelty so far as the children and the husband are  concerned. She did not know as to how the children fell into  the well. She was herself unconscious and recovered after  about four days. The husband, in fact, turned her out of  matrimonial home on 5.4.2002 alongwith their three children.  Unfortunately, she and the three children fell into the well.  The appeal is pending against her conviction.             The trial Court found that the allegation of cruelty was  established. Several instances were noted. One of them related  to her behaviour on the date of judgment in the criminal case.  After the judgment of conviction was pronounced, she  threatened to kill the husband and prosecute him. It was also  noted by the trial Court that the allegation made by her  alleging for dowry demand was dis-believed and the police  gave final report stating that the case was falsely lodged. The  trial Court granted the decree of divorce which was, as noted  above, confirmed by the High Court in appeal by dismissing  appellant appeal.  

       Learned counsel for the appellant submitted that the  foundation of decree for divorce is the alleged conviction for  which the appeal is pending and, therefore, the High Court  should not have disposed of the matter. In any event, it is  submitted that it was the husband and his family members  who were torturing her and being threatened by the husband  she had not made any grievance with the police.  Unfortunately, when she made the allegation, the police did  not properly investigate the matter and gave a final report  exonerating the husband.  

       Learned counsel for the respondent on the other hand  submitted that the instances highlighted by the trial Court  and analysed in great detail by the High Court clearly made  out a case for dowry and no interference is called for in this  appeal.   The expression "cruelty" has not been defined in the Act.  Cruelty can be physical or mental.  Cruelty which is a ground  for dissolution of marriage may be defined as wilful and  unjustifiable conduct of such character as to cause danger to  life, limb or health, bodily or mental, or as to give rise to a  reasonable apprehension of such a danger. The question of  mental cruelty has to be considered in the light of the norms

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of marital ties of the particular society to which the parties  belong, their social values, status, environment in which they  live.  Cruelty, as noted above, includes mental cruelty, which  falls within the purview of a matrimonial wrong.  Cruelty need  not be physical.  If from the conduct of his spouse same is  established and/or an inference can be legitimately drawn that  the treatment of the spouse is such that it causes an  apprehension in the mind of the other spouse, about his or  her mental welfare then this conduct amounts to cruelty. In  delicate human relationship like matrimony, one has to see  the probabilities of the case.  The concept, a proof beyond the  shadow of doubt, is to be applied to criminal trials and not to  civil matters and certainly not to matters of such delicate  personal relationship as those of husband and wife.   Therefore, one has to see what are the probabilities in a case  and legal cruelty has to be found out, not merely as a matter  of fact, but as the effect on the mind of the complainant  spouse because of the acts or omissions of the other. Cruelty  may be physical or corporeal or may be mental.  In physical  cruelty, there can be tangible and direct evidence, but in the  case of mental cruelty there may not at the same time be  direct evidence.  In cases where there is no direct evidence,  Courts are required to probe into the mental process and  mental effect of incidents that are brought out in evidence.  It  is in this view that one has to consider the evidence in  matrimonial disputes.         The expression ’cruelty’ has been used in relation to  human conduct or human behaviour. It is the conduct in  relation to or in respect of matrimonial duties and obligations.   Cruelty is a course or conduct of one, which is adversely  affecting the other.  The cruelty may be mental or physical,  intentional or unintentional. If it is physical, the Court will  have no problem in determining it. It is a question of fact and  degree. If it is mental, the problem presents difficulties.  First,  the enquiry must begin as to the nature of cruel treatment,  second the impact of such treatment in the mind of the  spouse, whether it caused reasonable apprehension that it  would be harmful or injurious to live with the other.   Ultimately, it is a matter of inference to be drawn by taking  into account the nature of the conduct and its effect on the  complaining spouse.  However, there may be a case where the  conduct complained of itself is bad enough and per se  unlawful or illegal. Then the impact or injurious effect on the  other spouse need not be enquired into or considered.  In such  cases, the cruelty will be established if the conduct itself is  proved or admitted (See Shobha Rani v. Madhukar Reddi, AIR  1988 SC 121 and  A. Jayachandra  v. Aneel Kaur 2005 (2)  SCC 22 ).

To constitute cruelty, the conduct complained of should  be "grave and weighty" so as to come to the conclusion that  the petitioner spouse cannot be reasonably expected to live  with the other spouse.  It must be something more serious  than "ordinary wear and tear of married life".  The conduct,  taking into consideration the circumstances and background  has to be examined to reach the conclusion whether the  conduct complained of amounts to cruelty in the matrimonial  law. Conduct has to be considered, as noted above, in the  background of several factors such as social status of parties,  their education, physical and mental conditions, customs and  traditions.  It is difficult to lay down a precise definition or to  give exhaustive description of the circumstances, which would  constitute cruelty.  It must be of the type as to satisfy the  conscience of the Court that the relationship between the

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parties had deteriorated to such an extent due to the conduct  of the other spouse that it would be impossible for them to live  together without mental agony, torture or distress, to entitle  the complaining spouse to secure divorce.  Physical violence is  not absolutely essential to constitute cruelty and a consistent  course of conduct inflicting immeasurable mental agony and  torture may well constitute cruelty within the meaning of  Section 10 of the Act.  Mental cruelty may consist of verbal  abuses and insults by using filthy and abusive language  leading to constant disturbance of mental peace of the other  party.

The Court dealing with the petition for divorce on the  ground of cruelty has to bear in mind that the problems before  it are those of human beings and the psychological changes in  a spouse’s conduct have to be borne in mind before disposing  of the petition for divorce. However insignificant or trifling,  such conduct may cause pain in the mind of another.  But  before the conduct can be called cruelty, it must touch a  certain pitch of severity. It is for the Court to weigh the gravity.   It has to be seen whether the conduct was such that no  reasonable person would tolerate it. It has to be considered  whether the complainant should be called upon to endure as a  part of normal human life.  Every matrimonial conduct, which  may cause annoyance to the other, may not amount to cruelty.   Mere trivial irritations, quarrels between spouses, which  happen in day-to-day married life, may also not amount to  cruelty.  Cruelty in matrimonial life may be of unfounded  variety, which can be subtle or brutal. It may be words,  gestures or by mere silence, violent or non-violent.

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  particular case and as noted above, always keeping in view the  physical and mental conditions of the parties, their character  and social status. A too technical and hyper-sensitive  approach would be counter-productive 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.  The ideal couple or a mere ideal one will  probably have no occasion to go to Matrimonial Court. (See  Dastane v. Dastane, AIR 1975 SC 1534).                

       The instances of cruelty highlighted by the trial Court  and also by the High Court clearly prove that the husband was  subjected to mental and physical cruelty. It is not a fact as  submitted by learned counsel for the appellant that the  conviction in the criminal case was the foundation for the  decree. On the contrary, the trial Court clearly mentioned that  the aspect was not taken note of as the appeal was pending.  

       In view of what has been stated above, the inevitable  result is dismissal of the appeal which we direct.  There will be  no order as to costs.