Cruelty as a ground for divorce under the Hindu Marriage Act can be established through evidence of mental suffering, with the standard of proof being preponderance of probabilities.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. First Appeal No. 3914 of 2017 is filed by Dr. Jyotiben, wife of Sanjay Vitthalrav Devre. She has challenged the judgment and order dated 28.10.2017 passed by learned Principal Judge, Family Court, Vadodara in Family Suit No.294 of 2012. By the aforesaid order, the Family Suit of the wife (appellant in First Appeal No. 3914 of 2017) requesting the Court for granting a decree of divorce under Section 13(1) of the Hindu Marriage Act, was dismissed.

2. First Appeal No.3916 of 2017 has been filed by the husband. He had approached the Family Court at Vadodara by filing Hindu Marriage Petition No.1389 of 2010 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The Family Court vide order dated 28.02.2017 rejected the Family Suit.

3. For the purposes of this common judgment and order, we will take the facts from First Appeal No.3914 of 2017 filed by the wife. Briefly stated the facts are that the marriage between the parties took place on 24.02.1999, according to Hindu rites and customs at Vadodara. Out of the wedlock, daughter Rishita was born on 27.07.2001 and daughter Manasvi was born on 22.03.2005. In the petition for divorce filed by the wife, it was her case that she was subjected with physical as well as mental cruelty on the ground that the family wanted a son. The birth of two daughters had brought forth upon her cruelty by the husband and in-laws. On 14.11.2008, she was compelled to consume sleeping pills. Subsequently, she left her matrimonial home to stay with her parents. An FIR for the offences punishable under Sections 498(A), 506 and 114 of the I.P.C. was filed by the wife, which was registered as Criminal Case No.43 of 2008 before the Bhachau Police Station. The wife also filed another complaint being I-C.R. No.03 of 2012 before Lakadiya Police Station at Gandhidham under Sections 406, 506(2) and 114 of the I.P.C. The marriage having failed, she went to Samkhiyali village where she would reside with her parents and daughters since year-2009. Thereafter being a professional, practicing in the field of Homeopathy, she shifted to Vadodara. It appears that in the year-2010, the husband filed a petition for restitution of conjugal rights, claiming that the wife had unjustifiably left the matrimonial home. Since the petition for restitution of conjugal rights was filed prior to the Family Suit for divorce, by an order approximately eight months before the divorce suit was decided, the petition for restitution of conjugal rights at the hands of the husband, was dismissed. Then followed the order by which, the wife’s claim for separation/dissolution of marriage was decided by the order of 28.10.2017.

4. Mr. Rajpurohit R. Bhawarlal, learned counsel appearing for the appellant of First Appeal No.3914 of 2017 (that of wife challenging the decree rejecting her petition for divorce) would submit as under:

4.1 There was ample evidence on record to suggest that the wife suffered mental as well as physical cruelty at the hands of the husband and the in-laws. A criminal complaint under Section 498(A) was filed in the year-2008. Reading the plaint for divorce, would indicate that a narration in the plaint indicated that as a result of the birth of two girl children in the family, the in-laws as well as husband inflicted cruelty on her as a result of which, she was compelled to consume sleeping pills in the year-2008.

4.2 Mr. Rajpurohit, learned counsel for the appellant-wife, would take us through the testimony of the wife at Exh.42 and her crossexamination to support his submission that a case for mental cruelty was made out and the trial court, therefore, committed an error in not accepting the stand of the wife-appellant of First Appeal No.3914 of 2017. He would also invite our attention to the additional affidavit filed in the court, pursuant to the order passed on 01.03.2023 and show us a bill of one Dr. Goswami certifying that the wife had been admitte