Unproven allegations in divorce proceedings can constitute mental cruelty, justifying dissolution of marriage.

JUDGMENT :

S. TALAPATRA, J.

1. Heard Mr. D. Mohapatra, learned counsel appearing on instruction of Mr. B.P. Tripathy, learned counsel for the Appellant. Despite due notice from this Court, none appears for the Respondent.

2. This is an appeal under Section 19 (1) of the Family Courts Act, 1984 from the judgment dated 07.02.2015, delivered in Civil Proceeding No. 11 of 2012 by the Judge, Family Court, Berhampur. By the said judgment, the petition filed by the Appellant under Section 13 (1) (i-a) of the Hindu Marriage Act, 1985 for dissolution of marriage on the ground of cruelty has been dismissed having observed that the Respondent herein, herself is victim of cruelty perpetrated by the Appellant. As such, the Appellant should not be allowed to take advantage of his own matrimonial mis-conduct and to succeed in the action for dissolution of marriage. It has also been observed that the Appellant herein was engaged in the extra-marital affair with one lady. The Respondent adduced evidence, both oral and documentary to prove these allegations brought against the Appellant.

3. Mr. Mohapatra, learned counsel appearing for the Appellant has stated that the marriage was solemnized between the parties on 20.07.1991 and was consummated happily for some period. In the wedlock, two sons namely Sankar Prasad Choudhury and Sameer Prasad Choudhury are born. Both of them have become major by this time and they are pursuing their vocation. The Appellant has suffered mental cruelty of extreme form as his name was connected with one lady, [whose name is withheld] by us. It has been stated that husband of that lady instituted a criminal action against the Appellant under Sections 497 /498/363/ 365/294/506 of the IPC [see the records of G.R. Case No. 354 of 2003]. However, the appellant was acquitted from the charge. It has been further stated that the Respondent had filed a complaint in the Berhampur Mahila Police Station against the Appellant alleging attempt to murder her as she was opposed to the said illicit relation. The said complaint had culminated in to G.R. Case No. 1368 of 2011 under Sections 307 /506/294/497/406/ 341/323/34 of the , read with Section 4 and 6-A of the D.P. Act. As the Appellant was detained in the custody, he was placed under suspension. Thus, according to the appellant, he has suffered extreme cruelty for the above role of the Respondent.

4. Mr. Mohapatra, learned counsel has submitted that after trial as indicated, all the allegations were proved to be false. But, the Appellant has suffered extreme form of mental cruelty and loss of dignity in the society for malicious conduct of the respondent. In this regard, Mr. Mohapatra, learned counsel, has referred to the decisions of Samar Ghosh Vs. Jaya Ghosh , 2007 (4) SCC 511 whereby the apex court as follows:

“The commentary of American Jurisprudence that the Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.”

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