IMPORTANT POINT
Divorce – Act of cruelty which can be reasonably perceived in one case may not be a cruelty in another case because of disparity in environment in which parties have grown up.

JUDGMENT

Harish Tandon, J.—The wife has filed the instant appeal assailing the judgment and decree dated 8th February, 2018 passed by the Court below dismissing an application for dissolution of marriage filed under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

2. The application for dissolution of marriage on the ground of cruelty was initiated by the wife alleging that the conduct and the behaviour of the respondent/husband is such which amounts to cruelty. It is further alleged that the husband is a perverted man and made certain proposals which were not acceptable to the petitioner and having forced to undergo with such trauma, it is becoming impossible to live under one shelter. She further stated in the petition that though she gave birth to four children, three daughters and one son but unfortunately, the son died which makes respondent furious and started constant quarrelling and abusing which is unbearable. She further narrated the incident when the younger brother of the respondent sexually assaulted her but despite having reported to the mother-in-law and the respondent, the response was very casual that it is quite normal in the said society. She further stated that she is at the risk of danger being in the association of the respondent and the aforesaid act and the conduct tantamount to cruelty.

3. The respondent denied all such allegations in the written statement, it is categorically averred therein that the younger brother lives in Uttar Pradesh and never used to visit the place of abode of the present parties and, therefore, the allegation made in the plaint on the alleged incident is concocted and manufactured for the purpose of securing a divorce. It is further stated that the appellant grew a relationship outside the marriage institution with another person being the resident of the said locality and she was kidnapped by the said person and on the basis of an FIR lodged by the respondent she was recovered from the custody of the said person. Though the complaint was lodged as an FIR but ultimately on the basis of the statement made by the appellant, the investigating officer did not find that the appellant was kidnapped by him as she voluntarily left matrimonial home along with him. It is categorically stated in the written statement that his family was all along happy with the three daughters who are still living with the respondent and the appellant never care to meet them as well since the day she left matrimonial home and started living with her parents. It is a specific stand of the respondent that he tried to bring the appellant on several occasions; even took the elder daughter along with him but there was a complete reluctance on the part of the appellant in restoring the matrimonial relationship. Lastly it is stated in the written statement that the respondent still bore love and affection towards the appellant and all along intended and still intending to live the happy conjugal life.

4. On the basis of the aforesaid facts discerned from the pleading the parties deposed in the matter. Interestingly, the elder daughter of the parties also deposed as the second witness of the respondent. We will be dealing with her deposition later on touching upon the veracity and the genuinty of the allegations made by the appellant not only in the pleading but also at the time of deposition.

5. The case is based upon the element of cruelty and, therefore, it would be the ardent duty of the Court to ascertain the concept of cruelty engrained in Section 10 and 13 of the Hindu Marriage Act, 1955.

6. Cruelty has not been defined in the said Act but from the various judicial pronouncements it imbibed within itself both mental and physical cruelty. The obvious reason for not defining the cruelty in the Act can be reasonably ascertained that the act of cruelty is of varied form and at times what may constitute a cruelty in a particular case may not be so in the other more particularly, when the cruelty is founded