MAIN POINT
Mental cruelty has to be inferred from a cumulative view of all instances of cruelty.

JUDGMENT

C. NAGAPPAN, J.

1. The appellant-husband in this civil appeal has assailed the judgment dated 24.11.2008 passed by the High Court of Calcutta Circuit Bench at Port Blair in F.A. No.003 of 2008, wherein the Division Bench of the High Court set aside the decree of divorce dated 14.7.2008 granted by the District Judge, A & N Islands, to the appellant herein, in Matrimonial Suit No.27 of 2005.

2. Shorn of unnecessary details the facts in brief which give rise to the appeal herein are as follows: The appellant-husband is an engineer and the respondent-wife is a draftsman, both working in the office of Andaman Public Works Department and their marriage took place on 2nd March 1994 and a son was born in the wedlock on 24.1.1996. It is an admitted fact that the respondent-wife had filed a complaint under Section 498-A IPC against the husband and it was subsequently withdrawn by her. It is also admitted fact that during their cohabitation the couple had changed their residence thrice. In 1997, the respondent-wife left the matrimonial home and started to live with her parents and upon legal notice sent by her husband she returned back to the matrimonial home. Then again in March 2003, the wife left the matrimonial home to live with her parents and has not come back since.

3. The appellant-husband filed a suit for divorce on the ground of cruelty and desertion under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955. He has alleged that immediately after marriage the relationship between the spouses was not cordial and the wife did not want to live with husband’s family and wanted to live separately. She insulted and abused the husband calling him ‘dhobi’ and the minor child as ‘dhobi’s son’ and because of her rude behaviour with landlord and neighbours they had to change the residence thrice. The wife refused to perform any household work and did not take proper care of their minor child and the husband had to bring food from outside and ultimately in the month of March 2003, she left the matrimonial home and did not return, leading to the filing of the divorce petition by the husband.

4. The respondent-wife contested the suit by filing her written statement alleging that since her father was working as ‘chowkidar’, her husband’s family was ill-disposed towards her and they used to taunt her for not bringing enough dowry. She has specifically denied the allegations in the plaint and asserted that she had never behaved improperly and she took good care of her child. She also leveled an allegation of extra marital affair against her husband with a woman who was working under him. According to her whenever she confronted him in this respect the husband would shout and abuse her.

5. The appellant-husband besides examining himself as PW1, examined the minor child as PW2 and the servant as PW3 on his side. The respondent-wife examined herself and her mother as DW1 and DW5 respectively and further examined three persons working in municipal council as DWs 2 to 4 on her side.

6. The trial court on a consideration of oral and documentary evidence held that the plaintiff-husband proved the ground of cruelty and desertion and granted the decree of divorce as prayed for. Challenging the same the defendant-wife preferred the appeal and the High Court on an elaborate consideration held that the trial court was not justified in decreeing the suit by dissolving the marriage between the spouses and allowed the appeal. Aggrieved by the same the husband has preferred the present appeal.

7. The learned counsel for the appellant-husband submitted that the High Court failed to consider and appreciate the cumulative instances of mental cruelty as pleaded and proved but considered every instance separately and held that each by itself would not entitle the husband to a decree for divorce and said approach is erroneous and contrary to law. It is his further submission that the High Court erred in not placing reliance on the child’s testi