2013 Supreme(Bom) 2254

High Court of Judicature at Bombay
A.S. OKA & REVATI MOHITE DERE, JJ.
“M”
Versus
“R”
Family Court Appeal No. 16 of 2006
Decided on : 13-11-2013

Headnote:HINDU MARRIAGE ACT, 1955 - Section 13(1)(i-a) - Allegation of cruelty. - An unsubstantiated allegation of extra-marital relationship, by itself sufficient to constitute "cruelty" in law. - The position of law is well settled that levelling disgusting accusations of extra-marital relationship amounts to grave assault on the character, honor; reputation, status as well as the health of a person. Such aspersions which are unsubstantiated constitute worst form of cruelty, sufficient by itself to constitute cruelty in law. In this case wife alleged that husband was having illicit relations with his own sister and sister-in- law.

       HINDU MARRIAGE ACT, 1955 - Section 13(1)(i-a) - Expression “cruelty“. - “Cruelty“ is a course of conduct of one which adversely affects other and it may be mental or physical, intentional or unintentional. - The allegations regarding the illicit relations of the respondent and his plan to eliminate her on account of the same. Both the spouses have alleged cruelty against the other. However, respondent husband has sought divorce on the ground of cruelty and desertion and the appellant wife curiously though has alleged cruelty by the respondent has not claimed divorce or judicial separation. On perusal of the evidence of the appellant wife and her witnesses, the evidence does not inspire confidence, is bereft of details and is inconsistent and contradictory with regard to the grounds of `cruelty‘ and `desertion‘ raised by the respondent.

       The appellant wife had also filed on record the police complaints lodged by her at Exhibit 55. According to her, the respondent used to call her and abuse her. However, it is relevant to note that there is not a whisper with regard to the said allegations in the appellant‘s petition for maintenance. Ordinarily, mental cruelty, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but would really go by the intensity, gravity and stigmatic impact it may have, when meted out even once and the deleterious effect of it on the mental attitude of a spouse.

       Considering the allegations and the incidents enumerated in detail by the respondent husband in the evidence, they would cumulatively constitute ‘cruelty‘ and which became fait accompli the day the appellant sent the letters at Exhibit 27. In the present case, that the Family Court has rightly come to the conclusion that the appellant husband is entitled to a decree of divorce under Section 13(1)(ia) of the said Act.

       HINDU MARRIAGE ACT, 1955 - Section 13(1)(i-a) - Mental cruelty. - Mental cruelty must consist of verbal abuses and insults by using abusive languages leading to constant disturbances of mental peace of other party. - The expression ‘cruelty‘ have 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‘ thus is a course or conduct of one, which adversely affects the other. It may be mental or physical, intentional or unintentional. It is a question of fact and degree. If it is physical, the Court will have no problem in determining the same. However, if it is mental cruelty, the enquiry must begin with the nature of cruel treatment and 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. Of course ultimately, it is a matter of inference to be drawn by taking into account the nature of conduct and its effect on the complaining spouse.

       The conduct complained of must be “grave and weighty“ so as to come to a conclusion that the spouse cannot be reasonably expected to live with the other spouse. It must be more serious than “ordinary wear and tear of married life." Mental cruelty must consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbances of mental peace of the other party.

       HINDU MARRIAGE ACT, 1955 - Section 13(1)(i-b) - Expression "desertion". - An intolerable conduct of wife, forcing husband to quit his own house amounts to "desertion". - In order to prove desertion it is necessary to prove two elements (i) the absence of consent and (ii) the absence of conduct giving reasonable cause to the spouse to leave the matrimonial home to form the necessary intention. In Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591 : 2002 (3) All MR 250 (SC), the Apex Court held that desertion under Section 13(1)(i-b) means intentional permanent forsaking and abandonment of one spouse by the other without the other’s consent and without reasonable cause. `Desertion’ is not a single act complete in itself, it is a continuous course of conduct to be determined in the facts and circumstances of each case. The onus was on the respondent to prove that he was not guilty of such conduct and that he was not taking advantage of his own wrong as contemplated under Section 23 of the said Act. Inference of desertion has to be made on balance of probabilities.

       It is held in the case of Laxman v. Meena, AIR 1964 SC 40 that in cases of desertion, the factum as well as the animus deserendi have to be proved. The burden of proof was therefore on the respondent husband. The Judge rightly came to the conclusion that in the present case the factum of desertion is proved by the respondent husband and that the respondent husband had left his own house because of the conduct of the appellant wife. As stated above the respondent had proved the acts of cruelty by the appellant wife and that it would not be possible for him to cohabit with her.

       The evidence on record clearly shows that the appellant wife with her conduct had made it impossible for the respondent husband to live in the matrimonial home and as a result of which he was compelled to abandon the house. The Family Court has rightly come to the conclusion that when the appellant was cross-examined on the point, she had initially denied taking keys but had thereafter admitted that she had asked the respondent husband to call prior to his arrival in the house. The said admission clearly indicates that the respondent did not have the keys of the house and in fact corroborated his statement that he could not enter the house unless the respondent was in the house.