IMPORTANT POINT
Mental cruelty as a ground for divorce requires clear and convincing evidence; mere allegations without substantiation do not meet the legal threshold for dissolution of marriage under the Hindu Marriage Act.

JUDGMENT

Arindam Sinha, J.

Mr. Tripathy, learned advocate appears on behalf of appellant-wife and submits, his client is aggrieved by judgment dated 19th August, 2021 of the Family Court dismissing her petition for dissolution of the marriage on ground of cruelty. His client had pleaded the facts. Respondent-husband chose not to appear before the Family Court. Appellant-wife took the box and proved the facts pleaded. In absence of cross-examination, the case made out by his client ought to have been accepted by the Family Court. There was error made by said Court in not doing so. On the top of that, failure to appreciate the facts.

2. There was attempt to serve and on presumption of respondent-husband avoiding service, direction made for substituted service. After everything had been done, by order dated 19th February, 2024 there was record of sufficiency of service against respondent-husband. The husband goes un-represented before us as well.

3. He relies on judgment of the Supreme Court in Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC 511, clause (iv) in paragraph 74 (Manupatra print). The clause is reproduced below.

'(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.'

His client's deep anguish was expressed both by pleadings and from the box.

4. He next relies on judgment dated 21st December, 2023 in MATA no.353 of 2023 (Anubhav Mohanty v. Varsha Priyadarshini), delivered by a Division Bench, to which one of us was party (Arindam Sinha, J.). He draws attention to paragraph 12, reproduced below.

'12. In view of our finding in preceding paragraphs 10 and 11 and omission of respondent-wife to bring on record physical incapacity, as she had refused or said it was not required for her to visit any doctor or valid reason for withdrawing herself, leads us to conclude that it was unilateral decision on her part to deny her husband. Mrs. Jena submits, there was no pleading in terms of illustration-(xii) in Samar Ghosh (supra) and as such the declaration of law by the illustration cannot come to aid of petitioner. We have already stated the facts pleaded and evidence laid. Law need not be pleaded.'

He submits, there was unilateral decision on part of respondent-husband to not only stay away from his client but also to stay away from the legal proceedings, both before the Family Court and this Court.

5. Lastly, he relies on view taken by a learned single Judge of Punjab and Hariyana High Court by judgment dated 29th April, 1994 in Lalita v. Om Parkash available at Indian kanoon. He relies on paragraph-9 in the downloaded print. The paragraph is reproduced below.

'9. The Trial Court again fell into an error, in my view, in saying that the period of 4/5 days was too short to come to the conclusion that the respondent was suilty of cruelty. Reference was made to certain observations occurring in an earlier decision of this Court in Santosh Kumar v. Parveen Kumar. A.I.R. 1987 Punjab and Haryana, 33 : [1987(2) All India Hindu Law Reporter 491 (Pb. & Hry.)]. I am unable to read the observations as meant to apply as principle of law. It must be read in the facts and circumstance of that particular case. It will depend on the enormity of the conduct and the offence caused to the opposite party rather than the period during which the offence is given. One can easily visualise a situation where the cruelty is so clear and pronounced as to leave no manner of doubt in the mind of opposite party about its nature. No hard and fast rule can be laid down that the opposite party must suffer for a certain minimum period before he or she can be held to have justifiably decided to walk out of the marriage because of the alleged cruelty.'

Parties stayed together for barely a month, after which there was separation. It has been 9 long years. On query from Court Mr. Tripathy submits, his client does not know whereabouts of respond