Sudhanshu Dhulia, J
1. These two appeals arise out of the order and decree passed by the Judge, Family Court, Dehradun dated 04.07.2017, which has decreed the petition
of the husband for dissolution of marriage and dismissed the petition of the wife for restitution of her conjugal rights. We would be referring to the
wife (irrespective of her capacity as appellant, defendant or plaintiff) as Ms. Bharti or the wife, and her husband Major Joydeep Majumdar (as he was
then at the time of institution of court proceedings) as the husband or Sri Joydeep.
ADMITTED FACTS
2. Joydeep in the year 2006 was a Captain in the Indian Army and was serving as an officer in the Indian Military Academy, Dehradun. Ms. Bharti is
also well educated, who has done her post-graduation and had a teaching assignment even at the time of her marriage. As of now she is in the
Provincial Civil Services in Uttarakhand as a “Statisticianâ€.
3. Joydeep and Bharti got married on 27.09.2006 at Dehradun under the Special Marriage Act, 1954. The certificate No. of marriage is 1360/2006
dated 27.09.2006 and was issued by the Marriage Officer/ADM, Dehradun, Uttarakhand. For reasons best known to the parties and their families, it
is also on record, that for customary or for other reasons, another marriage ceremony was held in Dehradun on 23.11.2006, as per Hindu rituals.
However, for our purposes, the date of marriage would be 27.09.2006.
4. In November, 2006, the couple goes to Vishakhapatnam where parents of Joydeep are settled. In December that year the couple returns to
Ludhiana where Joydeep was by that time posted. Some bitterness crops up between the couple during their stay in Ludhiana and it is also on record
that Ms. Bharti left for Dehradun, for reasons which are disputed, as there are contrary versions of this, which shall be discussed later.
5. Joydeep was later sent on a field course in Rajasthan and Ms. Bharti stays at Dehradun, though she joins him later in Rajasthan. Thereafter
alienation and estrangement creeps up between the couple and Ms. Bharti files a petition in the year 2008 under Section 125 CrPC for maintenance.
The husband meanwhile files a petition under Section 13 of the Hindu Marriage Act, 1955 at Vishakhapatnam, although the courts at Vishakhapatnam
had no jurisdiction in the matter either under Section 31 of the Special Marriage Act, or even for the sake of argument, under Section 19 of the Hindu
Marriage Act, 1955.
6. The grounds in the divorce petition, however, were of desertion and cruelty. It was alleged that the wife is using abusive language against the
husband and threatens not only of divorce but also of committing suicide. It was also said that the wife i.e. Ms. Bharti is suffering from
“Schizophrenia†and she was demanding an amount of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) for Ph.D. fee, and that she has
deserted her husband. Meanwhile, unaware of the petition filed in Vishakhapatnam, on 14.07.2008 Ms. Bharti files a petition under Section 22 of the
Special Marriage Act, 1954, seeking restitution of conjugal rights, before the Family Court at Dehradun, being Original Suit No. 336 of 2008.
7. On 23.02.2009 the petition filed by the husband at Vishakhapatnam stands decreed ex parte. He then files his written statement in the petition filed
by Ms. Bharti before the Family Court at Dehradun on 24.02.2009, in the case for the restitution of conjugal right, but does not mention the fact that
the court in Vishakhapatnam has already decreed his petition for divorce.
8. On 21.03.2009 Sri Joydeep again filed his written submission in the application moved by the wife for interim maintenance under Section 22 of the
Special Marriage Act, 1954. Again he does not mention anything about his petition been decreed by the Family Court at Vishakhapatnam.
9. On 02.06.2009 Sri Joydeep files a complaint before the Senior Superintendent of Police, Dehradun stating that he had come to Dehradun on
28.05.2009 to attend court hearing and while he was staying at Hotel Meedo in Dehradun, his wife came to his room and abused him and took away
the ex parte divorce decree which was lying on his bed.
10. Meanwhile having knowledge of the ex parte decree now Ms. Bharti files an application before the Family Court, Vishakhapatnam under Order 9
Rule 13 CPC for recalling the ex parte decree. Sri Joydeep apprises the Army authorities about the decree of divorce in his favour with a prayer that
the name of his wife Ms. Bharti be deleted from the official records. Wife in turn having knowledge of the same writes letters to the Army authorities
praying that this should not be done, as it is an ex parte decree where she had no notice.
11. In order to restrain Sri Joydeep from remarrying, his wife i.e. Ms. Bharti files a suit for injunction before the Family Court Dehradun being OS No.
399 of 2009. In the said suit, a temporary injunction was granted to the wife which was challenged by the husband before this Court in Writ Petition
(M/S) No. 1720 of 2009, which was later dismissed as withdrawn.
12. Meanwhile the wife (i.e. Ms. Bharti) moved the erstwhile High Court of Andhra Pradesh for expediting her application under Order 9 Rule 13
CPC and consequently by orders of the High Court proceedings were expedited, and the application filed by Ms. Bharti under Order 9 Rule 13 CPC
was allowed and the divorce suit filed by the husband was restored for hearing.
13. The wife then filed a transfer petition before the Hon’ble Apex Court for transferring the case from Vishakhapatnam to Dehradun, in which
the husband appeared and sought permission from the Apex Court, to withdraw the divorce petition from the Vishakhapatnam Court with a liberty to
file the same at Dehradun. This permission was granted by the Hon’ble Apex Court on 9.04.2012.
14. In Dehradun, the Family Court decreed Section 22 petition for restitution of conjugal right filed by the wife, but in appeal the matter was remanded
back, as by that time having sought the liberty from the Hon’ble Apex Court Sri Joydeep had also filed his petition for dissolution of his marriage
before the Family Court at Dehradun, and the two proceedings were to be simultaneously held before the Family Court at Dehradun.
15. During this period conciliation proceedings between the parties took place due to efforts of the Army Wives Welfare Association, but all in vain.
16. The wife had also moved an application under the Domestic Violence Act asserting her rights for residence which was granted to her.
17. The husband as stated above, had already filed a petition for dissolution of marriage under Section 27 of the Special Marriage Act, 1954 before the
Family Court at Dehradun. Both the suits i.e. Suit No. 500 of 2012 filed by the husband for divorce and the Suit No. 336 of 2008 filed by the wife for
restitution of conjugal rights were heard and an order was passed by the learned Family Judge decreeing the suit of the husband and dismissing the
suit of the wife against which the wife has filed the present two appeals before this Court.
18. We gave a long hearing in this matter, spread on different dates, where apart from hearing the counsel for the parties on more than one occasion,
we also heard the husband and the wife in person, in the open court, as well as in our chamber. This apart, the parties were also sent for mediation
before trained Mediators here, but nothing has come out of it.
19. As we have heard the parties and their counsels at length, we would just summarize the principal contention of the two parties.
The case of the husband is as follows:-
20. The marriage was arranged due to efforts of common friends of the two i.e. Ms. Bharti and Joydeep. Apart from special marriage which was
registered on 27.09.2006 another traditional Hindu ceremony was held in Hotel Sunrise at Dehradun, where gifts to the newly wedded couple and a
“shagun†of Rs. 51,000/- (Rupees Fifty One Thousand only) was given to the husband by the wife’s parents. From the end of November,
2006 till December 24, 2006, the couple stayed at Vishakhapatnam at the parental house of the husband and from there they both proceeded to
Ludhiana where the husband was posted. In Ludhiana the husband noticed a change in the behaviour of the wife, as she insisted on going back to
Dehradun and staying there as she was used to the life of Dehradun. It is also alleged that the wife started using foul and filthy language against her
husband for no apparent reason. In January 2007, the wife goes to her parental house in Dehradun for a few days and the husband comes all the way
from Ludhiana to pick her up, where a demand is raised by the wife for the purchase of television and refrigerator. The objection of the husband was
that this is not practical, as within a very short period he will be transferred elsewhere and this would create problem in transportation and she should
wait for the purchase, till his next posting. At this stage allegations of demand of dowry were also made against the husband by the wife. Somehow
the husband persuaded the wife to return to Ludhiana, and after staying for a few days in Ludhiana, she raised a demand of Rs. 1,50,000/- (Rupees
One Lakh Fifty Thousand only) for her Ph.D. fee, which the husband was unable to pay. The wife then threatens for divorce. Now the contention of
the husband is that this was being done because both his wife and his in-laws wanted him to settle as “Ghar Jamai†in Dehradun. This was not
possible as the husband was B.Tech. in Mechanical Engineering and also pursuing his M.Tech. in Mechanical Engineer from IIT, Kharagpur as a
sponsored candidate of the Indian Army and was in no position to settle down at Dehradun. The demand raised by the wife and the in-laws for settling
down in Dehradun, according to the husband were unreasonable, rather fanciful. It is also said that his wife while she was in Ludhiana was teaching in
GRD Girls College and Punjab College of Technical Education (Ludhiana) and was drawing a salary of Rs. 20,000/- (Rupees Twenty Thousand only),
which at the relevant time was more that what was being drawn by the husband. There are allegations against the wife of using foul language,
threatening for divorce, calling her husband an impotent, etc. All these according to the husband lowered his esteem in the eyes of his neighbours,
colleagues and friends, who were not used to such behaviour, and who were a witness to his wife’s tantrums. In September, 2007, it is also
alleged that the wife went to the railway tracks in Ludhiana, threatening to commit suicide. The next morning on 15.09.2007, wife’s parents came
to Ludhiana and took her away. It is alleged that the relationship between the two was by now completely broken. There was no conjugal relationship
between the two and the wife was totally insensitive to his needs. This amounts to cruelty on the part of the wife, it is alleged. It is also alleged that it
is the wife, who always threatens of divorce and in fact demanded Rs. 40,00,000/- (Rupees Forty Lakh only) in return for the divorce. Meanwhile, the
husband was posted at Secunderabad/Hyderabad, while the wife goes to live with her parents, who are in Dehradun. The husband alleges willful
desertion by the wife and also cruelty.
21. In paragraph 20 of his plaint the husband lists the nature of incidents and cases filed in the Courts by his wife against him, which according to him,
constitute cruelty.
(a) Case Complaint under Sec 12, 17, 18, 19, 20 and 22 of Domestic Violence Act, 2005 being Case No. 126/09 which has been decided ex parte and
an appeal is pending for disposal and decision against the ex parte decision.
(b) Complaint under Sec 125 CrPC against which proceedings under Sec 126 of the Act are pending before the Hon’ble Court.
(c) FIR No. 130 869,69/09 at PS Rajpur Road under sections 420, 498A, 406, 120B IPC and 2/3 Dowry Prohibition Act against the petitioner and his
father and mother.
(d) Numerous complaints were also made before the superior officers in the Army upto the highest level even to Chief of Army Staff with false &
Frivolous and fabricated charges just to defame and minimize his position.
(e) Numbers e-mails and complaints, threats were also made by the respondent against petitioner.
(f) That respondent and his chain of command by notice through lawyer also demanded money to the tune of Rs. 1 crore, thereafter Rs. 20 crores and
is continuously black mailing and harassing the petitioner. The respondent also defamed the petitioner in the society and before the Army Officials.â€
22. According to the husband, all the above mentioned cases were false and fabricated, due to which he had to face the ire of his superior officers.
He also became a subject of gossip and ridicule in the Army circle. As a result of this, according to the husband, he first filed a petition for divorce
under Section 13 of the Hindu Marriage Act on 25.06.2008 at Family Court Vishakhapatnam being Suit No.715 of 2008. This was decided ex parte
and the decree in favour of husband was granted on 20.02.2009. Later the husband was advised by his counsel at Dehradun that he should withdraw
the petition with a liberty to file an elaborate suit with correct facts. There is a mention of order of the Hon’ble Apex Court granting liberty to the
husband to file a petition before the courts in Dehradun. The order dated 09.04.2012 passed by the Hon’ble Apex Court in Transfer Petition
(Civil) No. 1366 of 2011 reads as under:
“ORDER
Counsel for the respondent states that the respondent would withdraw his petition pending before the Family Court at Visakhapatnam, Andra Pradesh
and in case he has to file any petition seeking any relief against the petitioner (his estranged wife), he will file the petition only before the proper Court
at Dehradun, Uttarakhand.
In view of the statement made at the Bar, the petitioner is left with no grievance.
The transfer petition is disposed of.
We may, however, observe that in case the respondent files a petition at Dehradun, the Dehradun Court shall take it up expeditiously and dispose if of
expeditiously and without any undue loss of time.â€
23. In view of the above, the original petition no. 715 of 2008 filed before the Court at Vishakhapatnam was dismissed as not pressed. The valuables,
jewelries articles which were in the custody of the husband are still in his custody, admits the husband, and he is ready to give the same to the wife on
asking any time. It is also alleged that although the case was going on in Dehradun, but there was always a safety issue for the husband in Dehradun
as his wife is a civil servant in Uttarakhand who could use police force in Dehradun against him.
The case of the wife is as follows:-
24. While the husband and wife were residing at Ludhiana and later for some period in Rajasthan, the past history of her husband surfaced. The name
of one Ms. Sujata, comes up who is, allegedly a friend and a previous lover of the husband, and who was on the verge of a nervous break down for
reasons that Joydeep had betrayed her trust and married someone else. On being persuaded by her husband, the wife had even to console Ms. Sujata.
But then, she feels betrayed as this fact was not disclosed to her by the husband prior to their marriage. The wife also alleges that while she was with
her husband at Vishakhapatnam, several sarcastic comments were made against her by the husband and her in-laws, hinting that they had not
received a proper dowry. The name of another lady officer who is serving as a Major in the Indian Army appears at this stage. The wife alleges that
her husband was having an affair with this lady and wanted to marry her.
25. The allegation that she ever asked for divorce are denied and so is the allegation that there was ever a demand of Rs. 1,50,000/- (Rupees One
Lakh Fifty Thousand only) for her Ph.D. According to the wife, the fee of Ph.D. in the University at the relevant time was only Rs. 2,500/- (Rupees
Two Thousand Five Hundred only) and other expenses such as printing, binding, etc. costs roughly Rs. 3000/- (Rupees Three Thousand only).
Therefore these allegations as regarding a demand of Rs.1,50,000/-(Rupees One Lakh Fifty Thousand only) are totally baseless. As far as the
allegation that the wife and her parents wanted the husband to be a “Ghar Jamaiâ€, the same is denied as false and even childish. According to the
wife any person of reasonable intelligence would know that in the Indian Army there is a transfer every two to three years, and hence there was no
question of her raising this demand. She then replies that her petition under Section 125 CrPC and petition under the Domestic Violence Act were
filed by her when she found herself at the end of her tether. This was the only option to save her marriage, and it was done for no other reasons, but
as a matter of last resort. Even in the complaint which she made before the Army Authorities, she has been cautious and had said that this is being
done by her only to stop her husband from deleting her name in the Army records as his wife. She at no point of time wanted to cause any harm in the
service of her husband. As far as the police complaint is concerned, it is replied that it was the husband who started it all, by filing the first police
complaint against his wife stating that she had barged into the hotel room and had taken away the divorce papers. She admits that subsequently an
FIR was made by her under Sections 420/498A/406/120B of IPC and 2/3 of the Dowry Prohibition Act. She further alleges that it was the husband
and his parents who threatened for the divorce, barely ten days of the marriage and she being filled with fear and apprehensive, in order to save her
marriage, first moved a petition under Section 125 CrPC and then under Section 22 of the Special Marriage Act, 1954 for restitution of conjugal rights
and for maintenance. Her petition under the Domestic Violence Act was made to ensure her right of residence. The petition was filed by her for
restitution of conjugal right as a matter of last resort when the husband stopped picking her calls.
26. Ms. Bharti then relates a few incidents. She says that she had a miscarriage, but no help came forward from the husband. Then her mother met
with an accident in February, 2008 and she was admitted in a hospital and was in ICU, and though she called her husband several times, but he did not
even bother to reply. She then alleges that the divorce case was filed at Vishakhapatnam court which had no jurisdiction in the matter and in order to
ensure that the notices would never be served on his wife deliberately gave a wrong address in the petition. Whereas her correct address is “121
Rajpur Road, Dehradunâ€, the address given was “21 Raj put Road, Dehradunâ€. There was no surprise then, that she did not receive any notice
from the Vishakhapatnam courts. The petition was hence decreed ex parte on 20.02.2009. She was shocked and pained at the sequences of these
events. In the petition filed by her for restitution of conjugal rights, the husband appeared before the court and filed his written submission and though
by this time he had obtained an ex parte decree, he did not disclose this before the Court at Dehradun. On his visits to Dehradun (to attend court
cases), he even called her to his hotel, where they stayed as husband and wife. And all this happened when he had a divorce decree in his favour,
which he had till then not disclosed to her or to the courts.
27. On these set of facts and pleadings, issues were framed by the Family Court. The grounds on which divorce was sought were desertion as well as
cruelty. All the same, the Family Court did not frame desertion as one of the issues. Apparently desertion was not made out even from the pleadings.
At the same time, since the petition for divorce was clubbed with the restitution of conjugal rights, and were heard together, the following issues were
framed by the court below in the two petitions:
“1. Whether the respondent treated the petitioner with cruelty as stated in various paragraphs in petition?
2. Whether the petitioner is entitle to the desired relief?
3. Whether the petitioner has withdrawn from the society of the respondent without reasonable excuse as stated by the respondent in the various
paragraph of her plaint in O.S. No. 336 of 2008?
4. Whether the respondent is entitle to the relief claimed by her?â€
28. What goes to the root of the matter is the issue of cruelty. Everything else depends on this finding. We would therefore first deal with the Issue
No. 1 and 2.
29. Under Section 27 of the Special Marriage Act, 1954 cruelty is one of the grounds available to a spouse for filing a petition for the dissolution of
his/her marriage. It is available when the other spouse has “treated the petitioner with crueltyâ€.
30. Cruelty has not been defined under the Act, and understandably so, as what constitutes cruelty or “legal crueltyâ€, cannot be defined in precise
terms, as cruelty would depend upon the facts and circumstances of each case. However, ordinarily, cruelty would mean a treatment to a spouse by
another in a manner which makes his/her life unbearable. Logically therefore it would not include the ordinary wear and tear of married life or even a
temperamental behaviour of a spouse towards the other.
31. At this stage, we must also mention that most of the cases which we would refer here relate to the findings on cruelty on Section 13 of the Hindu
Marriage Act, 1955, but since cruelty mentioned as a ground for divorce in Special Marriage Act is similarly worded*, the rulings on this aspect will be
equally available in both the cases.
32. In Sirajmohmedkhan Janmohamadkhan v.Hafizunnisa Yasinkhan (1981) 4 SCC 250 :1981 SCC (Cri) 829 (as referred in the case of Naveen Kohli
in para 46), the Hon’ble Apex Court has observed that the concept of legal cruelty changes according to the changes and advancement of social
concept and standards of living. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment,
cessation of marital intercourse, studied neglect and indifference can also be cruelty. Cruelty can be physical or mental. In a case of physical cruelty,
it can be ascertained from facts and the each alleged case of cruelty as to whether cruelty has indeed taken place. The allegations of mental cruelty,
however, are difficult to establish, as is the case at hand.
* Whereas in Section 13(1)(i-a) of the Hindu Marriage Act, 1955 a marriage can be dissolved by a decree of divorce when the other party “has,
after the solemnization of the marriage, treated the petitioner with crueltyâ€, in Special Marriage Act, 1954 it is in Section 27(1)(d) it is where the
other party “has since the solemnization of the marriage treated the petitioner with crueltyâ€.
33. In Shobha Rani v. Madhukar Reddi (1988) 4 SCC 105 : 1988 SCC (Cri) 60, again the Hon’ble Apex Court has held that the factum of cruelty
does not depend upon the intention of a party. It may be an unintentional behaviour as well, but it should be a continuous behaviour which has the
potential to disrupt an ordinary married life of a couple. Again the Hon’ble Apex Court observed as follows :
“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 standards 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 and 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 also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon (1966) 2 All ER 257 ‘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 complaint of. Such is the wonderful (sic) realm of cruelty.†(as observed by the
Hon’ble Apex Court in Naveen Kohli).
34. Whether the petitioner has been treated with cruelty is a question which has to be very carefully examined. The allegations have to be weighed in
the light of the evidence and the conduct of the parties, over a period of time. We are dealing here with human emotions and temperament on one
hand and the norms and the laws laid down by the society on the other. What constitutes cruelty in a matrimonial relationship is a delicate question of
law and fact, but more so of fact.
35. The Hon’ble Apex Court has defined cruelty or rather what would amount to a cruel treatment in a matrimonial relationship, in the case of A.
Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22. Paragraph 12, 13 and 14 of the judgment of A. Jayachandra (supra) are reproduced below:-
“12. 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 lifeâ€.
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 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 will 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.
13. 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 the 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.
14. 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
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 a 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 N.G. Dastane (Dr.) v. S. Dastane (1975) 2 SCC 326: AIR 1975 SC 1354].
36. An unusual even erratic behaviour of a spouse towards the other will not constitute cruelty. Cruelty cannot also be extended to each and every
behaviour of a spouse which does not fit the “normal†or what is considered as “normal†by the other. Has this made the life of the other
unbearable, is the critical question.
37. Lord Denning, L.J. in Kaslefsky v. Kaslefsky (1950) 2 All ER 398 : 1951 P 38 (CA) (as referred in the case of Naveen Kohli) observed as
under:-
“If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy
path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself
is imperilled.â€
38. Having examined the facts of the present case, we are not convinced that the husband was treated with cruelty by his wife. The cruelty alleged
was more a reaction on the part of the wife, to the acts of her husband. The Family Court has gone totally wrong in appreciating the facts of the case
and has wrongly recorded a finding that since the wife had moved application and complaints before the Army authorities and filed a case under
Section 125 CrPC, and the FIR under Sections 420, 498A, 406, 120B IPC and 2/3 Dowry Prohibition Act, and for restitution of conjugal rights, by
making reckless allegations against her husband, which amount to cruelty. The wife had no option but to file a petition under Section 125 CrPC when
she was not being maintained by her husband! The legal system in India provides this remedy to the wife and it cannot be termed by any stretch of
imagination as “crueltyâ€, if the wife resorts to it, unless the case or the complaint is false. Her petition for restitution of conjugal right is again a
right given to her under the law where she can claim restitution of conjugal right if the same is being denied to her, without a valid reason. The same
goes with her petition under the Domestic Violence Act and the FIR made by her. It is necessary to state here that neither the husband nor the
parents of the husband at any point of time were arrested, although it has been continuously agitated by them that they had to face court proceedings
in this matter, but mere filing of cases for assertion of rights does not amount to cruelty. Moreover police case by the wife is subsequent to the police
complaint made by the husband against her.
39. Cruelty would also depend upon the facts and circumstances of each case. Here we are unable to accept the findings that the husband was
treated with cruelty by his wife. The court below has termed the allegations of the wife as “recklessâ€, without explaining how. It has not been the
finding anywhere that these allegations were false. Same goes with her allegations regarding Ms. Sujata and later regarding the serving Major in the
Indian Army. The allegations of the use of foul language and the demand of Rs. Forty Lakh for agreeing to the divorce have not been established.
Apart from the allegations of the husband there is nothing on record which may give strength to these allegations. Same goes for other allegations as
well. What constitutes cruelty here according to the Family Court are merely the so called “reckless allegations†against her husband by the wife.
These allegations cannot be termed as “recklessâ€.
40. Definitely numerous cases were filed by the wife. But this in itself will not amount to cruelty, as has been wrongly held by the court below. On the
other hand, what is critical here is the petition for divorce which was filed by the husband before courts in Vishakhapatnam! The courts in
Vishakhapatnam had absolutely no jurisdiction in the matter. The husband ultimately withdrew his suit with liberty to file the same before the courts in
Dehradun. Yet the fact remains that he not only has abused the process of law but withheld this vital information both from his wife as well as from
the courts at Dehradun, until he had no option but to disclose this fact.
41. We are only making these observations and not passing any judgment on the character of either of the parties. But the filing of divorce petition at
Vishakhapatnam court that too by giving wrong address of the defendant, does not give any credit to the husband.
42. Ultimately, what is there before us is not a complex question of law, nevertheless it is a complex question of human emotions and temperament.
Consequently it is futile to find fault with any of the two parties. Yet we are absolutely clear that there is no element of cruelty from the side of the
wife which would justify grant of a decree of a divorce in favour of the husband. What has been constituted to be a cruelty, and the so called
“reckless allegations†made by the wife against the husband, as we have already held, cannot be constituted as cruelty. None of these allegations,
in any court or at any forum, have been found to be false or fabricated. In our considered view, the wife was only asserting her rights, granted to her
under the law of the land.
43. At the same time, and on the same set of facts, issue no. 3 also goes against the husband and in favour of the wife. The husband had no
reasonable excuse to withdraw from the society of his wife.
44. We say this as we have not been able to find even one reasonable cause which may justify the husband’s conduct towards his wife.
Allegations that she insisted that a refrigerator and television be purchased and later demanded a sum of Rs. One Lakh Fifty Thousand for her Ph.D.,
even if true, are at best petty squabbles of ordinary middle class married life. It did not even worth a mention in the divorce petition, considering the
social status of the couple. Even the so called “reckless allegationsâ€, are not the cause but only a sequel to the conduct of the husband, who had
left his wife in Dehradun and who had to then move the court under the Domestic Violence Act to assert her right for residence, as we have already
observed in the preceding paragraphs. The story is quite the other way round, and if any one has any reason to live separately, then it is the wife. We
therefore give a finding on issue no. 3 in favour of the wife and hold that the husband had no reasonable excuse to withdraw from the society of his
wife.
45. As a result, we allow both the appeals, set aside the decree of the Family Court for divorce granted in favour of the husband and decree the suit of
the appellant/wife for restitution of her conjugal rights.
