Rajiv Sharma, J.@mdash1. This appeal is instituted against the judgment dated 3.7.2015 rendered by the learned District Judge, Hamirpur in
HMA No. 96 of 2012.
2. ""Key facts"" necessary for the adjudication of this appeal are that the appellant has filed a petition under section 13 (1) (ia) (ib) of the Hindu
Marriage Act, 1955. The marriage between the parties was solemnized on 29.4.2004 as per Hindu rites and ceremonies. Appellant is serving in
the Indian Army. He had taken the respondent to Jammu. Respondent became defiant and her behaviour was indifferent towards him. Respondent
started torturing the appellant mentally by not obeying his commands. She was also taken to Dharamshala. Thereafter, she refused to join the
company of the appellant. The petition was filed seeking divorce on the ground of cruelty and desertion.
3. The petition was contested by the respondent. Respondent has denied the allegations made in the petition. The allegations of mis-behaviour and
defiant conduct were specifically denied.
4. Issues were framed by the District Judge on 8.3.2013. The District Judge dismissed the petition on 3.7.2015. Hence, the present appeal.
5. PW-1 Pritam Chand has deposed that the matter was brought before the Pradhan Gram Panchayat, Bajuri vide Ex. PW-1/A. Statements were
recorded. However, the matter was dropped as the proceedings were pending before the learned District Judge under section 13 (1) (ia) (ib) of
the Hindu Marriage Act.
6. PW-2 Anurag is the landlord of the appellant at Dharamshala. According to him, the relations between the parties were not cordial.
7. Appellant has appeared as PW-3. According to him, respondent proclaimed that she would not conceive a child. Respondent stayed at
Dharamshala and they used to go to Kathua to take medicine. His mother has undergone bypass surgery. Respondent used to say that she would
consume poison and falsely implicate the appellant.
8. RW-1 Surinder Kumar has deposed that respondent and her uncle, maternal uncle and mother had come with a prayer that she wanted to live
in her in-laws house but the appellant was not ready to accept her. Thus, she was forced to live with her parents since June, 2012.
9. RW-2 Soma Devi has deposed that respondent used to visit her in-laws house. She used to say that her parents-in-law used to harass her. She
had assured her to talk to the appellant.
10. RW-3 Meera Devi has deposed that respondent used to weep and the appellant had left her in her parental house. He has not tried to take her
back.
11. Respondent has appeared as RW-6. According to her, she has never left the company of the appellant. Appellant has exchanged letters vide
Ex. R-2 to Ex. R-7. They had physical relations till 2012. She has never refused to cohabit with the appellant. She was ready to join the company
of the appellant.
12. Allegations made by the appellant against the respondent are vague and sketchy. The only allegation against the respondent is that she was not
obeying his commands. No specific instance has been quoted by the appellant of any incident whereby the respondent has defied the appellant. It
has come on record that the relations between the parties were cordial till 2012. It has also come on record that in fact it is the appellant who is not
permitting the respondent to live with him and he has deserted the respondent. It has come in the statement of RW-6 Anubala that she was ready
and willing to live with the appellant at the time of recording of her statement. The appellant cannot be permitted to take advantage of his own
wrongs.
13. Now, as far as the plea of desertion is concerned, according to the appellant, respondent has deserted him in the year 2012, but the petition
was filed on 12.6.2012. There was no question of desertion since two years had not elapsed from the date of filing of petition for divorce. Learned
District Judge has come to a right conclusion that respondent was being harassed for not conceiving a child. As per the statement of PW-4 Dr.
Sanjay Bhat, respondent was capable to conceive a child since her uterus and ovaries were normal.
14. Their Lordships of the Hon''ble Supreme Court in Bipinchandra Jaisinghbai Shah versus Prabhavati, , AIR 1957 SC 176 have held that two
essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an
end (animus deserendi). Their Lordships have held that desertion is a matter of inference to be drawn from the facts and circumstances of each
case. Their Lordships have held as under:
What is desertion? ""Rayden on Divorce"" which is a standard work on the subject at p.128 (6th Edn.) has summarized the case-law on the subject
in these terms:--
Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently
to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not
necessarily make that spouse the deserting party"". The legal position has been admirably summarized in paras 453 and 454 at pp. 241. to 243 of
Halsbury''s Laws of England (3rd Edn.), VoL 12, in the following words:--
In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent and
without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life
involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the
withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations
of the married state; the state of things may usually be termed, for short, ''the home''. There can be desertion without previous cohabitation by the
parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting
party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of
at least three years immediately preceding the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as
a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not
complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence"".
Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other
spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to
desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum
of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as
the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two
spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas
under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the
suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for
divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case.
Desertion is a matter of inference to be drawn from the facts and circumstances to each case. The inference may be drawn from certain facts which
may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed
by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a
separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences
when the fact of separation and the animus deserendi co- exist. But it is not necessary that they should commence at the same time. The de facto
separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of
time; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation
permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a
continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus
provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications
of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced,
desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is
necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to
resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the
offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute
rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the
following observations of Lord Goddard CJ. in the case of Lawson v. Lawson, 1955-1 All E R 341 at p. 342(A), may be referred to:--
These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution.......
With these preliminary observations we now proceed to examine the evidence led on behalf of the parties to find out whether desertion has been
proved in this case and, if so, whether there was a bona fide offer by the wife to return to her matrimonial home with a view to discharging marital
duties and, if so, whether there was an unreasonable refusal on the part of the husband to take her back.
15. Their Lordships of the Hon''ble Supreme Court in Lachman Utamchand Kirpalani versus Meena alias Mota, , AIR 1964 SC 40 have held that
in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent and
without reasonable cause. It is a total repudiation of the obligations of marriage. Their Lordships have further held that the burden of proving
desertion - the ''factum'' as well as the ''animus deserendi'' is on the petitioner and he or she has to establish beyond reasonable doubt to the
satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just
cause. Their Lordships have held as under:
The question as to what precisely constitutes ""desertion"" came up for consideration before this Court in an appeal for Bombay where the Court
had to consider the provisions of S. 3(1) of the Bombay Hindu Divorce Act, 1947 whose language is in pari materia with that of S. 10(1) of the
Act. In the judgment of this Court in Bipin Chandra v. Prabhavati, , 1956 SCR 838; ((S) AIR 1957 SC 176) there is an elaborate consideration of
the several English decisions in which the question of the ingredients of desertion were considered and the following summary of the law in
Halsbury''s Laws of England (3rd Edn.) Vol. 12 was cited with approval:
In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the order without that other''s consent, and
without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life
involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases."" The position was thus
further explained by this Court. ""If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without
intending permanently the cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is
concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention of bring cohabitation permanently to an end
(animus deserndi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid...... Desertion is a matter of
inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another
case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by
conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the
essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of
separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may
have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time."" Two more
matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases,
and this is a point to which we have already made a passing reference. It is settled Law that the burden of proving desertion -the ""factum"" as well
as the ""animus deserendi"" - is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the
desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if
the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that
the desertion was without just cause. As Dunning, L. observed : (Dunn v. Dunn (1948) 2 All ER 822 at p. 823):
The burden he (Counsel for the husband) said was on her to prove just cause (for living apart). The argument contains a fallacy which has been
put forward from time to time in many branches of the law. The fallacy lies in a failure to distinguish between a legal burden of proof laid down by
law and a provisional, burden raised by the state of the evidence........... The legal burden throughout this case is on the husband, as petitioner, to
prove that this wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That
is a fact from which the court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she
may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and, indeed, it is usually wise for her to do so, but
there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the Court has still, at the end of the case, to ask itself:
Is the legal burden discharged? Has the husband proved that she deserted him without cause? Take this case. The wife was very deaf, and for that
reason could not explain to the Court her reasons for refusal. The judge thereupon considered reasons for her refusal which appeared from the
facts in evidence, though she had not herself stated that they operated on her mind. Counsel for the husband says that the judge ought not to have
done that. If there were a legal burden on the wife he would be right, but there was none. The legal burden was on the husband to prove desertion
without cause, and the judge was right to ask himself at the end of the case: Has that burden been discharged?
16. Their Lordships of the Hon''ble Supreme Court in Smt. Rohini Kumari versus Narendra Singh, , AIR 1972 SC 459 have explained the
expression ''desertion'' to mean the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent
or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage.
Under Section 10 (1) (a) a decree for judicial separation can be granted on the ground that the other party has deserted the petitioner for a
continuous period of not less than two years immediately preceding the presentation of the petition. According to the Explanation the expression
desertion"" with its grammatical variation and cognate expression means the desertion of the petitioner by the other party to the marriage without
reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the
marriage. The argument raised on behalf of the wife is that the husband had contracted a second marriage on May 17, 1955. The petition for
judicial separation was filed on August 8, 1955 under the Act which came into force on May 18, 1955. The burden under the section was on the
husband to establish that the wife had deserted him for a continuous period of not less than two years immediately preceding the presentation of the
petition. In the presence of the Explanation it could not be said on the date on which the petition was filed that the wife had deserted the husband
without reasonable cause because the latter had married Countess Rita and that must be regarded as a reasonable cause for her staying away from
him. Our attention has been invited to the statement in Rayden on Divorce, 11th Edn. Page 223 with regard to the elements of desertion According
to that statement for the offence of desertion there must be two elements present on the side of the deserting spouse namely, the factum, i.e.
physical separation and the animus deserendi i.e. the intention to bring cohabitation permanently to an end. The two elements present on the side of
the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to
bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be
subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and
which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of
constructive desertion"" is discussed at page 229. It is stated that desertion is not to be tested by merely ascertaining which party left the
matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for the driving out
is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the
case of a man who with the same intention compels his wife by his conduct to leave him.
17. Their Lordships of the Hon''ble Supreme Court in the case of Shobha Rani v. Madhukar Reddi reported in , AIR 1988 SC 121 have
explained the term ""cruelty"" as under:
4. Section 13(1)(i-a) uses the words ""treated the petitioner with cruelty"". The word ""cruelty"" has not been defined. Indeed it could not have been
defined. It 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. It 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 the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents
difficulty. First, the enquiry must begin as to the nature of the 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. 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 spouse need not be enquired
into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
5. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in
particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes
complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised
as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or
their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and
lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and
the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as
Lord Denning said in Sheldon v. Sheldon, [1966] 2 All E.R. 257 (259) ""the categories of cruelty are not closed."" Each case may be different. We
deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may
constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the
conduct complained of. Such is the wonderful/realm of cruelty.
18. Their Lordships of the Hon''ble Supreme Court in Samar Ghosh v. Jaya Ghosh reported in , (2007) 4 SCC 511, have enumerated some
instances of human behaviour, which may be important in dealing with the cases of mental cruelty, as under:
98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be
any comprehensive definition of the concept of ''mental cruelty'' within which all kinds of cases of mental cruelty can be covered. No court in our
considered view should even attempt to give a comprehensive definition of mental cruelty.
99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to
assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case.
The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural
background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture
through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of
time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The
prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned
factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which
may be relevant in dealing with the cases of ''mental cruelty''. The instances indicated in the succeeding paragraphs are only illustrative and not
exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties
to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party
cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may
reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a
long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment
complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury
to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset
may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of
divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct
must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a
spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and
similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of
the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may
amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The
marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
19. Their Lordships of the Hon''ble Supreme Court in Ashok Kumar Jain v. Sumati Jain, , AIR 2013 SC 2916 have held that it is always open to
the Court to examine whether the person seeking divorce ""is not in any way taking advantage of his or her own wrong or disability for the purpose
of such relief."" On such examination if it is so found that the person is taking advantage of his or her wrong or disability it is open to the Court to
refuse to grant relief.
20. Accordingly, in view of observation and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending
application(s), if any, also stands disposed of. No costs.