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DELHI HIGH COURT
S. Ravindra Bhat and Ms. Deepa Sharma, JJ.
Mini Appa Kanda Swami @ Mani —Appellant
versus
M. Indra —Respondent
MAT.APP. 45 of 2011
Decided on 21.9.2016
Counsel for the Parties:
For the Appellant:Ms. Shailja Balasaria, Advocate
IMPORTANT POINTS
(1) In order to constitute cruelty, the conduct of the spouse should be something more serious than the ordinary “wear and tear” of a marital life.
(2) Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act.
Headnote:Hindu Marriage Act, 1955—Section 13(1)(ia)—Petition for dissolution of marriage by divorce on ground of cruelty—Appeal against dismissal of petition by Family Court—Whether a particular conduct constituted cruelty, social states of parties, their cultural background, customs and traditions were to be considered—To constitute cruelty conduct of spouse should be something more serious than ordinary “wear and tear” of marital life—Appellant was living in accommodation with three rooms and his family comprised his parents, Three brothers and three sisters—No evidence to support appellant that requisite privacy was provided to respondent and if she asked for separate residence, such demand could not be said to constitute cruelty even if appellant was a labourer with limited means—Allegations that respondent was of abusive behaviour were vage and without any specific instances cited—No reason to interfere with order impugned.
Held: The question for consideration is whether the conduct of the respondent/wife in the circumstance of the case, amounted to cruelty, to entitle the husband to divorce. Cruelty could be physical or mental or both. While it is easy to discern physical cruelty, mental cruelty has to be assessed from the overall behavior of spouses as well as other incidental factors. There is no doubt that in a matrimonial setup, a couple, which decides to live together, invariably has different attitudes and opinions, likes and dislikes, and more often than not spouses behave differently when faced with the same situations. While disputes and arguments are normal in a marriage, in order to constitute cruelty, the conduct of the spouse should be something more serious than the ordinary “wear and tear” of a marital life.
While considering whether a particular conduct constitutes cruelty or not, the social status of parties, cultural background, physical and mental conditions, customs and traditions etc. have to be considered. Mental cruelty can be assessed from the continuous unprovoked conduct of a spouse which causes embarrassment, humiliation, and anguish so as to render the other spouse’s life miserable and unendurable. This conduct should be of such gravity that the wronged party cannot be reasonably asked to put up with such conduct and continue to live with the other party.
It is in the backdrop, of the behavior of parties, that the court has to discern if the conduct complained is cruelty. There is no dispute as to the fact that the appellant was working as a labourer. He was living in a house built on a plot measuring 25 sq. yards, consisting of two rooms, along with his parents, three brothers and three sisters. While the appellant in his evidence deposed he had a room on the ground floor and one room on the first floor, his mother in her deposition claimed that there were two rooms on the ground floor and one room on the first floor. Even if the latter account were taken to be true, it leads to a scenario where, three rooms accommodate eight adults. With the respondent joining her matrimonial home and after the birth of their child, the number of members living in that house further increased.
Privacy is a fundamental human right. Oxford dictionary defines privacy as “a state in which one is not observed or disturbed by the other people.” So when a woman enters into matrimony, it is the duty of the family members of her matrimonial home to provide her with some privacy. There is no evidential backing by the appellant or his family members showing that they had provided requisite privacy to the respondent. The Family Court was therefore correct in holding that such demand was not unreasonable and as such did not constitute cruelty. Besides this allegation, the appellant has not brought on record any proof to substantiate the allegation that the behavior of the respondent caused mental cruelty. The allegation that she was abusing the appellant and his family members are vague and there are no specific instances cited. (Paras 10, 11, 13 and 14)
(ii) Hindu Marriage Act, 1955—Section 13—Petition for divorce—Decree for divorce cannot be passed on ground of irretrievable breakdown of marriage alone. (Paras 20 and 23)
Result: Appeal dismissed.
Ms. Deepa Sharma, J.—This appeal has been preferred by the appellant husband against the order of the Family Court, Rohini, Delhi, dated 12.08.2010 whereby his petition for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act (hereafter “the Act”) was dismissed.
2. Briefly, the facts are that the parties got married according to Hindu rites and customs at JJ Colony, Delhi on 06.09.2003 and through the wedlock one male child was born on 01.07.2004.
3. The petition for divorce was filed by the appellant on the ground of cruelty, alleging that the respondent wife was pressurizing him to setup a separate home as she did not want to live in a joint family. The appellant worked as a labourer and it is his contention that owing to limited financial means it was not possible for him to set up a separate independent household. It is further contended that despite several attempts to explain the difficulty of setting up a separate household, the respondent refused to cooperate and kept pressurizing the appellant. It is argued that the respondent became overbearing and abusive and also started misbehaving, not only with the appellant but also with his family members. The respondent would get aggressive and on several occasions had even beaten him. She also refused to do the household chores and threatened to implicate him and his family members in false criminal cases. Thereafter, on 21.11.2003, her parents visited her and instead of advising her to mend her ways, supported her. The respondent continued her atrocities against the appellant and his family and on 21.01.2004, left the matrimonial home without giving any reasons. It is argued by the appellant that he and his family members made several efforts for reconciliation and even went to the respondent’s parental home on 10.02.2004 and 04.03.2004 to bring her back so that she could rejoin the company of the appellant. However, all such attempts failed. In fact, it is alleged, that instead of sorting the differences, the respondent and her family threatened to implicate the appellant as well as his family members in dowry demand cases. The appellant received a notice from CAW Cell (Crime Against Women Cell) on 30.03.2005. A false complaint with Mahila Ayog (Delhi Commission of Women) was also filed by the wife. The appellant submits that he returned all the dowry articles to the respondent on 25.04.2005. It is submitted that he did not condone the wife’s cruelty in any manner and that their marriage reached a point of no return with there being no likelihood of a patch up or sorting of differences. Under such circumstances there could be no re-union of the parties.
4. The respondent, who appeared in person in the proceedings, had filed her written statement which controverted all the appellant’s contentions and had urged that it was he who had treated her with cruelty. She contends that the appellant had raised a demand of Rs. 1 lakh as well as a motor cycle and when she could not make good of these demands, she was turned out of the matrimonial home; she made efforts for reconciliation, but to no avail. It is also contended that she was sent back to her parental home when she was in family-way and all the delivery expenses were borne by her parents.
5. In the replication, the appellant had alleged that it was he who had borne the delivery as well as post-delivery expenses and denied any allegation that he had demanded any money or a motor cycle or even that he had treated her with cruelty.
6. The Family Court heard the arguments and framed three issues:-
“a. Whether after the solemnization of marriage, the respondent has treated ‘the petitioner with cruelty’? OPP
b. Whether the respondent has deserted the petitioner , for a continuous period of not less than 2 years immediately before presentation of this petition? OPP
c. Whether the petitioner is entitled for a decree of divorce on the ground as prayed for? OPP
7. Parties led their evidence. While the appella
