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PETITIONER: S.HANUMANTHA RAO

       Vs.

RESPONDENT: S.RAMANI

DATE OF JUDGMENT:       31/03/1999

BENCH: V.N.Khare, R.P.Sethi

JUDGMENT:

                               J U D G E M E N T

V.N.KHARE, J.

     The  appellant  is the husband who is in appeal.   The respondent  is  his wife.  The appellant and the  respondent were married according to Hindu rites and customs on 26-8-88 at  Hyderabad.   The marriage was also  consumated.   During October  1988,  while the couple were in a honeymoon, it  is alleged  that the respondent told the appellant that she was forced  into  marriage  by her parents, while she  was  more interested  in her career rather than a married life, as she had  studied  M.Sc.  in electronics.  It is also alleged  by the  appellant  that  on 15.10.88, on a petty  quarrel,  the respondent  walked  out of his house and it was after  great persuasion she was brought back to his house.  The very next day  of  the said incident, the respondent was taken by  her parents  to their house and despite request by the appellant and  members  of  his family, she did not return  for  about two-and-a-half months to the house of the appellant.  During that  period,  there  was a reconciliation, as a  result  of which  the respondent was sent to the house of the appellant on the condition that she should be sent to the house of her parents  on  every  Thursday and taken back on  Saturday  to facilitate her to perform Santoshimata Puja on every Friday. According  to  the appellant, this arrangement also did  not suit  the  respondent  and all the time  she  complained  of deprivation  and  expressed  her  desire to  return  to  her parents  house permanently.  On 8-3-89, it is alleged  that the respondent in privacy took out her Mangalsutra and threw it  at the appellant, and on the very next day, she went  to her  parents place and thereafter she never returned to the appellants house, despite several requests.

     Thereafter,   there   were    several   meetings   for reconciliation  which  failed.  It is also alleged that  the respondent  got a complaint lodged through her uncle who was then  posted  as Superintendent of Police, with  the  Womens Protection  Cell, CID, Hyderabad against him and his  father and  other  members of his family as a result of which  they had to seek anticipatory bail from the court.  Subsequently, again, efforts were made for reconciliation but they did not fructify and under such circumstances, the appellant filed a

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petition  before the Judge, City Civil Court, Hyderabad  for dissolution of marriage by granting decree of divorce on the grounds  of  mental cruelty and desertion.  The  grounds  of cruelty  were  attributed to three acts of  the  respondent. Firstly,  while  in  privacy, the respondent  took  out  her Mangalsutra  and  threw it at the appellant;  secondly,  the respondent  kept, maintained and preserved the copies of the letters  sent  by her to the appellant which  shattered  the mutual confidence between the couple;  and thirdly, that the respondent  lodged a complaint through her uncle against the appellant  and the other members of his family u/s 498A  IPC with  the Womens Protection Cell, Hyderabad, for which  they had  to obtain anticipatory bail from the court.   According to  the  appellant, all these three acts of  the  respondent constituted mental cruelty upon him and thus was entitled to a  decree  of divorce.  The wife filed counter affidavit  to the  petition filed by her husband wherein she admitted that while  in  privacy  she took out Mangalsutra  and  that  she maintained  and preserved the copies of letters sent by  her to  her  husband.   However, she denied  having  lodged  any complaint  with  the  Womens Protection Cell,  Hyderabad  or threw Mangalsutra at the face of her husband.  The appellant examined  himself as well as his witnesses in support of his allegation  and filed the letters sent by the respondent  to him  which  were exhibited as Exts.  A1 to A10.  The  Fourth Additional  District Judge, City Civil Court, found that the acts  of  the  respondent  in  taking  out  Mangalsutra  and throwing  it  at  the husband, keeping and  maintaining  the copies  of  letters  sent  to her  husband  and  lodging  of complaint  with the Women Protection Cell constituted mental cruelty  upon  the  husband and as such  the  appellant  was entitled  to  decree of divorce.  However, the  trial  court found that the wife did not desert the appellant.

     Aggrieved,  the respondent filed an appeal before  the Andhra  Pradesh High Court.  The High Court, on appreciation of  evidence  found,  that  the  incidents  alleged  by  the appellant  were  blown out of proportion and in  fact  those incidents  did not constitute mental cruelty.  Consequently, the  decree  of the trial court was reversed and the  appeal was  allowed.  It is against this judgment the appellant  is in appeal before us.

     Learned counsel appearing for the appellant urged that the  view  taken  by the High Court that since  the  parties after  the  incident  of 8th March, 1989, cohabited  and  it therefore  amounts  to condonation of guilt of the  wife  is based  on no evidence, and as such the said finding  suffers from  legal  infirmity.   It  is true that  the  High  Court recorded  the following finding in its judgment - the  very admission  in the petition of the respondent that he did not make  an  issue  of  the incident  and  cohabited  with  the appellant, thereafter constituted condonation.

     On  a perusal of the petition filed by the  appellant, what  we  find  is  that in the petition  for  divorce,  the appellant has alleged that on 8th March, 1989, his wife took out  her  Mangalsutra  and threw it at  him  and  thereafter finally  deserted  him.  We further find that the  appellant and  his  witness in their testimony nowhere  admitted  that after  the date of the incident i.e.  on 8th March 1989  the wife  and the husband cohabited.  The respondent also in her evidence  never  stated that she cohabited with her  husband after  the  date of incident.  It is, however, correct  that

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the  appellant in connection with the incident of 8th March, 1989  stated  that he did not make an issue out of the  said incident as it would have disturbed the peaceful life of his family.   But, he would never forgive his wife for the  said act.   We,  therefore, do not find any evidence of the  fact that  the  parties cohabited after 8th March, 1989,  as  the wife  stated  to have left the house of the appellant  after that  date.  In the absence of such evidence, the finding of the  High  Court that since the parties cohabited after  8th March, 1989 and as such same would constitute condonation of guilt, is unsustainable.

     It  was  then  urged that the view taken by  the  High Court  that  the incident of throwing of Mangalsutra by  the wife  as alleged by the appellant has not been substantiated and further the removal of Mangalsutra by his wife would not amount  to  mental  cruelty within the  meaning  of  Section 13(1)(ia)   of  Hindu  Marriage   Act,  is  erroneous.   The appellant  in  his  petition  as well as  in  his  evidence, alleged that his wife after taking out her Mangalsutra threw at  him.   The wife in her counter affidavit  and  statement admitted  that  she removed the Mangalsutra but denied  that she  had  ever  thrown the Mangalsutra at her  husband.   As stated above this incident took place in privacy.  There was no  other witness to the incident.  The respondent very well could have denied the alleged incident.  But she admitted to have  removed  the Mangalsutra only to please  her  husband. Moreover,  when the wife was being cross-examined before the trial  court  no question was put to her about  throwing  of Mangalsutra at the appellant.  For all these reasons we find that testimony of the respondent was rightly believed by the High  Court  while disbelieving the incident of throwing  of Mangalsutra by the respondent, as alleged by the appellant.

     Coming  to the second limb of the argument whether the removal  of Mangalsutra by the respondent constituted mental cruelty  upon the husband, learned counsel for the appellant submitted  that  Mangalsutra around the neck of a wife is  a sacred  thing  which symbolises the continuance  of  married life  and  Mangalsutra  is removed only after the  death  of husband.    Thus,   the  removal  of  Mangalsutra   by   the respondent-wife was an act which reflected mental cruelty of highest  order as it caused agony and hurt the sentiments of the appellant.

     Before  we deal with the submission it is necessary to find  out what is mental cruelty as envisaged under  section 13(1)(ia)  of  the Act.  Mental cruelty broadly means,  when either  party causes mental pain, agony or suffering of such a  magnitude  that it severs the bond between the  wife  and husband  and as a result of which it becomes impossible  for the party who has suffered to live with the other party.  In other  words,  the  party  who has committed  wrong  is  not expected  to  live  with  the other party.  It  is  in  this background  we  have  to  test the argument  raised  by  the learned  counsel  for the appellant.  The  respondent  after having  admitted  the  removal of Mangalsutra  stated,  that while in privacy the husband often used to ask her to remove the  chain  and  bangles.  She has also stated that  in  her parents  house  when  her  aunt and mother used  to  go  to bathroom  they used to take out Mangalsutra from their  neck and  therefore  she thought that she was not doing  anything wrong in removing Mangalsutra when she was asked to do so by her  husband.   She  also stated that whenever  she  removed Mangalsutra,  she  never thought of bringing an end  to  the

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married  life and was still wearing her Mangalsutra;  and it is  when  her  husband made hue and cry of such  removal  of Mangalsutra,  she  profusely  apologized .  From  all  these evidence  the  High  Court concluded that the  incident  was blown  out of proportion and the appellant attempted to take advantage  of the incident by picturising the same as an act of  cruelty  on  the  part  of  the  wife.   The   question, therefore,  arises whether the removal of the Mangalsutra by the  wife  at  the instance of her husband would  amount  to mental  cruelty  within the meaning of Section 13(1)(ia)  of the  Act.   It is no doubt true that Mangalsutra around  the neck  of  a  wife is a sacred thing for a Hindu wife  as  it symbolises  continuance  of  married  life.   A  Hindu  wife removes her Mangalsutra only after the death of her husband. But here we are not concerned with a case where a wife after tearing  her Mangalsutra threw at her husband and walked out of  her husbands house.  Here is a case where a wife  while in  privacy, occasionally has been removing her  Mangalsutra and  bangles on asking of her husband with a view to  please him.   If  the  removal of Mangalsutra was  something  wrong amounting to mental cruelty, as submitted by learned counsel for  the  appellant, it was the husband who  instigated  his wife  to  commit that wrong and thus was an abettor.   Under such  circumstances the appellant cannot be allowed to  take advantage  of  a wrong done by his wife of which he  himself was  responsible.   In such a case the appellant  cannot  be allowed to complain that his wife is guilty of committing an act  of mental cruelty upon him, and further by such an act, has  suffered  mental  pain and agony as a result  of  which married life has broken down, and he is not expected to live with  his  wife.  It also appears to us that,  whenever  the appellant asked her wife for removal of her Mangalsutra, the respondent  never comprehended that her husband at any point of  time would react to such occurrences in the way he  did. Under  such circumstances, the appellant was not expected to have  made  an issue out of it.  We are, therefore,  of  the view that removal of Mangalsutra by the respondent would not constitute  mental  cruelty  within the meaning  of  Section 13(1)(ia) of the Act.

     The  next  ground of act of cruelty attributed to  the wife relates to her preserving and maintaining copies of her letters sent to her husband.  Learned counsel urged that the act  of  the  wifes preserving copies of such  letters  has shaken the confidence of the husband which amounts to mental cruelty  upon  her husband, as according to him,  copies  of such  letters  were  preserved  knowingly  to  use  them  as evidence  in future and such an action definitely amounts to mental cruelty.

     The  view  taken  by  the High  Court  was  that  mere retention  of  copies  of the letters would  not  amount  to mental  cruelty.   We  also find that if the  wife  had  any intention  to  use  copies of those letters she  would  have filed  the same before the trial court.  Excepting filing  a counter  affidavit the respondent-wife did not file any copy of  the letters sent to her husband, whereas the husband has filed  all the letters sent to him by his wife in the  court which  were exhibited.  The respondent wife in her testimony stated  that  she wrote several letters to her husband,  but her  husband  did  not  reply any of them and  as  such  she started  preserving the copies of the letters sent by her to her  husband.  This act of the respondent, according to  us, is  a  most natural behaviour of human being placed in  such circumstances.   Thus, we find mere preserving the copies of

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the  letters  by the wife does not constitute an  act  which amounts  to mental cruelty, and a result of which it becomes impossible  for  the  husband to live with  his  wife.   We, therefore,  reject the submission of learned counsel for the appellant.

     The last act of the respondent, which according to the learned counsel for the appellant, amounts to mental cruelty is  that  she lodged a complaint with the  Women  Protection Cell,  through  her  uncle  and as a  result  of  which  the appellant  and  the  members  of  his  family  had  to  seek anticipatory  bail.   The respondent in her evidence  stated that  she  had  never  lodged   any  complaint  against  the appellant  or  any  members  of his family  with  the  Women Protection  Cell.   However,  she stated  that  her  parents sought  help  from Women Protection Cell for  reconciliation through one of her relative who, at one time, happened to be the  Superintendent of Police.  It is on the record that one of  the  functions of the Women Protection Cell is to  bring about  reconciliation between the estranged spouses.   There is  no evidence on record to show that either the  appellant or  any member of his family were harassed by the Cell.  The Cell only made efforts to bring about reconciliation between the  parties but failed.  Out of panic if the appellant  and members   of  his  family   sought  anticipatory  bail,  the respondent  cannot be blamed for that.  Thus, we are of  the opinion,  that  representation  made by the parents  of  the respondent  to the Cell for reconciliation of the  estranged spouses  does  not  amount to mental cruelty caused  to  the appellant.

     For  all  these reasons, we do not find any  merit  in this  appeal.   The appeal is accordingly dismissed.   There shall be no order as to costs.