Rajiv Ranjan v. Anita Kumari Yadav

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.1363 of 2016 ====================================================== Rajiv Ranjan Son of Shri Sheoji Roy, resident of Village- Hilapur Ward No.- 2, P.O.- Hilapur, P.S. Industrial Area Hajipur, Vaishali. ...... Appellant/s

Versus

Anita Kumari Yadav daughter of Ram Surat Yadav & wife of Rajiv Ranjan, resident of Ariaon Ke Tola, P.S.- Daudpur, District- Saran at present New Darjeeling More Near Kanchanjunga Gas Godown, P.O.- Pradhan Nagar Siliguri, District- Darjeeling (West Bengal). ... ... Respondent/s Appearance :

For the Appellant/s :

Mr. Kamal Nayan Choubey, Sr. Adv, Mr. Gopal Shankar, Adv, and Mr. Anirudh Kumar Sinha,Adv and Mr. Brisketu Sharan Pandey, Advocate For the Respondent/s :

Mr. Banwari Sharma, Adv, Mr. Shambhu Pd.

Yadav, Adv and Mr. Shahja Nand Sharma, Adv ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR) Date : 26-09-2018 Heard the parties.

2. This Miscellaneous Appeal has been filed for setting aside the order dated 29.10.2016 passed in Matrimonial (Divorce) Case No. 288 of 2012 passed by the Principal Judge, Family Court, Muzaffarpur by which the application filed by petitioner under Section 13(1) (i-a) of the Hindu Marriage Act for dissolution of marriage and grant of divorce on sole ground of cruelty was rejected.

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3. The appellant/husband (P.W.1) had stated in his divorce petition as well as statement made on oath that he was married to respondent/wife on 12.06.2010 as per Hindu Rites and Customs and respondent/wife came to her matrimonial house on 13.06.2010 and both of them started living as husband and wife and a reception was hosted for newly wedded couple on 15.06.2010 at Hajipur.

4. The marriage entered into rough weather at the initial stage itself. After reception when guests and relatives of petitioner returned back, as per prevalent customs and practice his family members and ladies of neighbourhood came to his house to see the presents and gifts given to newly married couple in marriage and reception but respondent/wife did not allow presents and gifts to be opened and started shouting and hurling abuses on him and his family members and she said that she will take all presents to her parental home. Everyone present there was shocked and dismayed by the conduct and behaviour of respondent/wife which caused much humiliation and embarrassment to appellant/husband and his family members.

5. Appellant/husband is Assistant Engineer in Airport Authority and went back to resume his duty on 03.07.2010 at his place of posting in port Blair and requested his wife to

3/37 accompany him as she had picked up quarrel with all family members but she refused to go with him. Petitioner came to know that on 12.07.2010 respondent/wife told his sister and niece to go out of the house and also alleged that they were characterless and dependent upon others. However, they had to remain there as there was no one to take care of his old parents as respondent/wife did not take any care of his parents. Even his relatives and friends started avoiding to come to his house because of ill behaviour of respondent/wife. After quarreling from his parents and family members she went to her parental house on 12.07.2010 after calling his brother alongwith presents.

6. The health of his mother further deteriorated due to ill behaviour, bad conduct and quarrelsome nature of respondent/wife as she was suffering from hypertension and heart problem and she was admitted to P.G.I. Chandigarh on 28.07.2010 and she had to undergo heart surgery and remained hospitalised for two months till 28.09.2010 but respondent/wife never came to see her ailing mother.

7. Mother of appellant/husband remained in Panchkula with his younger brother for post operative recovery and returned to her house in Hajipur on 13.10.2010.

4/37 Respondent/wife came to her matrimonial home and again started quarreling, misbehaving and abusing his family members. Appellant had arranged for her ticket for port Blair for 08.12.2010 but respondent/wife got her ticket booked for port Blair for 03.11.2010 by her father and she came to port Blair at his place of posting leaving his parents unattended and uncared.

8. In port Blair also the attitude and behaviour of respondent/wife was not accommodative and cordial and she misbehaved quarreled and used abusive and filthy language against appellant. She deliberately acted in such manner which was disliked by appellant and never cared about prestige and reputation of appellant and quarreled with him on trivial issues. Appellant made all efforts to keep her happy and took her for marketing, dining and strolling but nothing changed and improved and marital relations remained strained and painful.

9. The respondent/wife used to go outside the residential campus even in mid night and used to talk on her mobile to strangers after midnight and returned home in early morning, in spite of being disliked by him. She used to hide the key of the car and official files and documents only to trouble husband and when she was warned not to behave in such manner she started quarreling, threatening and abusing

5/37 appellant. She also threatened to immolate herself as the marriage was solemnized against her wishes. She also used to call him ugly and not suitable of being her husband. On 15.04.2011 she locked herself in the room and appellant had to break open the door which caused much embarrassment to appellant at his place of posting. On 22.05.2011 she attempted to hang herself.

10. Appellant was transferred from port Blair to Delhi and he came back on 25.08.2011 and did not took respondent with him as she was pregnant and he went to Delhi on 26.08.2011. However, respondent did not live in her matrimonial home peacefully and went to her parental home on 17.09.2011 after locking her entire belongings presents and other articles and also articles of appellant in Almirah, trunk and boxes and took away the key with her. A girl child was born on 28.04.2012 but no one was invited in the function of Chatti and no improvement was seen in her conduct and behaviour and appellant whenever went to his Sasural he was humiliated, abused and threatened by his in laws. Respondent also refused to cohabit with him and refused her marital obligation to be performed and also did not allow to meet his daughter and as such the relations between the parties never improved and

6/37 appellant always remained in anguish and agony because of continuous mental cruelty caused by respondent/wife and left with no option but to seek dissolution of marriage by a decree of divorce on the sole ground of cruelty and filed a divorce petition in the court of Principal Judge, Family Court, Hajipur on 22.11.2012. In his cross-examination he has stated that on 03.07.2010 when he went back to join his duty his mother was not ill. He had not taken ticket for his wife on 03.07.2011. She came alone from Calcutta. From July 2010 to November 2010 she was in talking terms with his parents. She stayed for a brief period and thereafter went to her parental house. In Andaman Nikobar his wife used to reside and dine with him. He used to take her to market and hotel and island. She used to talk with strangers.

She became pregnant in January 2011. He denied that he refused to send her back when she became pregnant. He also denied that on 07.02.2011 his wife went to her matrimonial house and his father took her to a doctor on 09.02.2011 in Hajipur and on said date she was with him in port blair. Sex determination and abortion has been denied. He has denied appearing in any exam of BPSC in April 2011 and she was in port blair with him. In July 2011 he was transferred to Delhi and he returned on 25.08.

7/37 on next day, since she was pregnant, she was not taken to Delhi. No one went to attend Chhati as no one was invited. His wife never returned to her matrimonial house thereafter. The demand of Rs. 10 lacs or flat in Delhi was denied. He had not sold the I20 Car but same was sold by his wife and whole money was withdrawn by her. On 18.01.2013 there was marriage of his younger brother and no ornaments was demanded from his wife nor she was ousted on 14.01.2013. One e-mail dated 19.12.2008 was sent by a person named Sanju @ Saroj to his wife. He refused to keep respondent/wife with him as his parents had to go to jail. The Principal Family Court had called for compromise on 05.07.2014 but same failed and he was attacked outside the court premises by knife in which he sustained bleeding injuries and he had instituted a case being P.S. Case No. 540/14 against his father-in-law, brother in law and wife. He is not aware that police has submitted final form in same case.

11. In support of his case appellant has examined five witnesses and 15 documents were exhibited which have been marked as Exhibits 1 to 15 before the Family Court.

12. PW-2 is father of appellant, who has stated that marriage was solemnized on 12.06.2010 and respondent had came to her matrimonial house and on 15.06.2010 a reception

8/37 was organized in which lots of presents were given to his daughter in law by his relatives and after two days when the family members wanted to see the presents then his daughter in law started shouting and using abusive and filthy language against all and said that all presents are her and she will take it to her parental home. However, looking at the prestige of family he pacified the matter. His son left for port Blair on 03.07.2010 and to keep peace in the family he requested his daughter in law to accompany him but she insulted by refusing to go with him. His wife was a heart patient and she was taken care by his elder daughter and grand daughter but respondent also insulted her by saying that she was characterless and dependent upon others and used to always keep her insulting and she left her matrimonial house on 12.07.

2010 abusing all family members when her mother-in-law was seriously ill. The condition of his wife deteriorated due to continued ill and abusive behaviour and she was mentally shocked and was admitted on 28.07.2010 in P.G.I. Hospital, Chandigarh where she remained admitted for two months but in spite of request made to respondent to take care of her mother-in-law, she never visited her ailing mother-in-law.

9/37 went to her parental home on 03.11.2010 leaving him and his wife and went to place of posting of appellant. After some days he came to know that his daughter in law is pregnant and after quarreling from her husband she had gone to her parental house where she has given birth to a female child. He tried and made all efforts to save the matrimonial relations of his son and daughter in law but she refused to live with his son. Due to cruel behaviour of his daughter in law and her family members the life of his son became miserable and thereafter a criminal case was instituted on 21.02.2013 in which he and his wife were sent in jail where they remained for two months. He has heard the recording of conversation between the son and his daughter in law which is a part of record in this case.

He has seen the photographs of his daughter in law with one Saroj which is also a exhibit in this proceeding. His daughter in law always used filthy language against his son and other family members and used to say that this marriage has been solemnized against her wish and she will do whatever she likes. His daughter in law has also instituted a false case in Siliguri against them. Whenever he or other family members went to see his grand daughter they were abused and assaulted and was not permitted to meet his grand daughter.

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13. In his cross-examination he has stated that marriage was solemnized in Siliguri and his daughter in law came next day in Hajipur where they are living from last 15-20 years. He has two sons and two daughters, all are married and they used to visit their parents in Hajipur. Lot of presents were received in reception and when they wanted to see they were insulted and abused. She came on 13.06.2010 and went on 12.07.2010. During treatment his daughter and grand daughter were in the house. In the year 2004 his wife was operated, he made a complaint to the father of respondent about her behaviour. He stated that he wants to live alone.

14. PW-3 is mother of appellant and she has repeated what has been stated by PW-1 and PW-2. In absence of her husband she called her brother and took away all the presents at the time when she was suffering from heart problem. All the time the daughter in law stayed with her, she was looked after by her daughter and grand daughter and upon them she made allegation of being characterless and insulted them. She was shocked by the cruel behaviour of her daughter in law and when her condition deteriorated her son and husband took her to Chandigarh hospital where she remained admitted for two months but her daughter in law never came there to see her. Due

11/37 to cruel behaviour of his wife, his son remained sad and frustrated and many a time when dispute aggravated she used abusive and threatening language from her parental house which was recorded by his son. Her daughter in law used to say that marriage was solemnized against her wish and if divorce is not granted she will commit suicide and implicate all family members. She instituted a concocted criminal case in which she and her husband had to remain in jail for two months. She had also instituted case in Siliguri under Domestic Violence Act against her husband and other family members. Her son was also attacked outside the chamber of Family Court Judge. All the time when her daughter in law remained with her son her behaviour was cruel and her son suffered mental cruelty, humiliation, and as such, he had no option but to seek dissolution of marriage.

15. PW-4 Phula Devi is a tenant in the house of father of appellant. She has stated that she was present at the time of marriage and also attended the reception party. After marriage there was dispute in Siliguri and respondent/wife had refused to go to her matrimonial home but on pressure of his father, mother and brother she went there. After reception when many ladies of locality went to the house of appellant they were shocked to see

12/37 the respondent was quarreling with her father in law, mother in law, sister in law and husband that presents have not been given by their family members, as such she will not show it to anyone and will take it to Chapra. Respondent lived in her matrimonial house for one month and always abused and insulted them. On many occasions she alleged that her sister-in-law and niece are characterless. Due to cruel behaviour of respondent the condition of her mother-in-law deteriorated and she was admitted in Chandigarh hospital and instead of visiting Chandigarh she called her brother and took away all her articles. After her in laws returned to their house she again came and started abusing and insulting them. She framed her in laws in a criminal case in which they had to remain in jail for two months. She did not permit her in laws to see their grand daughter.

16. P.W.-5 Ramesh Sahni in his deposition has stated that the marriage was solemnized of the respondent Anita Kumari with Rajeev Ranjan and he knows father of Rajeev Ranjan for last ten years and he is a tenant. He could not attend the marriage ceremony but had attended the reception hosted on 15.06.2010 and the behaviour of respondent/wife against her husband and her in laws and their relations was cruel and rude.

13/37 After two days of reception he was in his room then he heard respondent/wife shouting and using filthy language and when he went their house he found that Anita Kumari was using derogatory language against her husband, his parents, sister and niece. After tolerating the appellant/husband went to join his duty and respondent/wife daily used to condemn his parents and used filthy language against them as a result of which mother of appellant/husband remained ill and she was carried to Chandigarh hospital where she was operated for heart but respondent/wife never visited Chandigarh to see her ailing mother-in-law.

She lived in her matrimonial home for one month and in absence of her father in law and mother-in-law she called her brother and took away all articles and thereafter she came to her matrimonial house only once and got arrested her in laws. Every effort was made to save their married life but due to cruel attitude and behaviour of respondent/wife no option was left but to file divorce case.

14/37 filthy language against her in laws and got them arrested. In her cross-examination he has stated that he and Phula Devi are tenants in the house of appellant.

17. Respondent/wife (D.W.1) appeared and filed her written statement and stated on oath that the marriage was solemnized with appellant in Siliguri on 12.06.2010 and on said occasion Rs. 5 lacs in Cash, Rs.499,500/- through bank and one Hundai I-20 Car priced Rs. 5,50,000/- furniture worth 1,31,000/-, clothes of 50,000/- and Jewelries of Rs. 1,53,206/- was presented besides 1,65,000/- was spent on fooding and 1,39,100/- was spent on decoration and after marriage she went to her matrimonial house.

18. In the initial stage everything was normal but after second marriage (Duragaman) on 25.06.2010 when she came back to her matrimonial house she found change in the behaviour and attitude of her husband and he became aggressive and impulsive. She requested him to change his behaviour but nothing improved. On 03.07.2010 her husband went back to join his duty in Andaman Nikobar and respondent was not taken proper care by her in laws and she was subjected to mental torture by her father-in-law and mother-in-law, sisterin-law and her daughter and they used to taunt her that she

15/37 ought to have brought more dowry so that a flat in Delhi could be booked and as such she started feeling sick and depressed but she was not provided any medical care and thereafter called his father on phone and she was taken to doctor for treatment.

19. She was used to be locked in her room and on complaint being made to the husband he showed his helplessness. His father booked a ticket for her on 03.11.2010 and she was sent to the place of his posting and their relations remained very cordial and in January 2011 she found that she was pregnant and she requested that she should be sent to her parental home but her husband insisted that she should go to matrimonial home and on 07.02.2011 she was sent to her matrimonial home. On 09.02.2011 her in laws took her to a doctor and after being examined by a doctor and ultrasound was done and she returned to her matrimonial house and on the same night she heard her in laws talking to her husband that they have got the sex determined of the child in womb and it is a female child, upon which on 12.02.2011 her husband told her to get herself aborted as he does not want a female child and on her refusal her in laws assaulted her and on 13.02.2011 her fatherin-law took her to Calcutta from where she reached Andaman Nikobar on 14.02.2011 and her condition deteriorated and she

16/37 suffered miscarriage which was result of assault upon her.

20. However, she was not given proper attention and medical care and she threatened that she will go to the police and thereafter on 15.02.2011 she was admitted in Hyderabad Apollo Hospital and she returned to Andaman and Nikobar on 21.02.2011 and when her husband became assured that she will not make any complain to the police then again he started torturing her. Her husband made her life hell.

21. In April 2011 she came to Hajipur alongwith her husband to appear in BPSC examination and she was told by her in laws that if she wants to stay in the matrimonial home his father must book a flat in Delhi. No one took proper care of her in her matrimonial house as such, she came back to Andaman to remain with her husband and in July 2011 her husband was transferred to Delhi and she came back with her husband to her matrimonial house on 25.08.2011 and her husband went to Delhi living her and as she was not feeling well she called her brother and who got her examined by doctor and she was informed that she is again pregnant.

22. In February 2012 her parents brought her to Siliguri and a girl child was born on 28.04.2012 and on Chhati function neither her husband nor anyone from in laws came to

17/37 attend the function. In march 2012 a proposal was made to sell the car which was received in marriage and from sale proceeds a flat at Delhi will be booked and car was sold for Rs. 4,3000/- which was deposited in her saving account and ATM was given to appellant/husband and he withdrew all the amount but flat in Delhi was not booked.

23. On 18.01.2013 the marriage of her brother in law was fixed and on 14.01.2013 she was asked to give her ornaments but she refused and thereafter she was assaulted and her all ornaments were snatched and she was sent to her parental home. Her father wanted to resolve the issue but her in laws said that unless and until a flat is booked in Delhi she will not be permitted to live in her matrimonial house and as a result when all scope of compromise failed her father instituted a case on 21.02.2013 under Section 498A of IPC giving rise to Daudpur P.S. Case No. 28/2013. Her husband had also instituted a false case against her of assaulting him in court premises. She had denied all allegations made against her in divorce petition and only because of non-payment of Rs. 10 lacs and giving birth to a girl child, present petition has been filed with wrong allegations. In her cross-examination she has accepted of having filed a case in Siliguri under domestic violence Act, in which order was

18/37 passed that she can reside in the house of her in laws and she was also provided police protection by order of the court. She has accepted that her father-in-law and mother-in-law were sent in jail and effort was made for reconciliation in the High Court but she did not went there. On 14.01.2013 she was assaulted and ousted from matrimonial house. The marriage of her brother in law was on 18.01.2013. Her in laws did not give her proper fooding. She was used to be treated by her brother. Her husband had arranged ticket of her on 03.11.2010 for Andaman. She was sent on 07.02.2011 by her husband and got examined by the doctor by her in laws. Father in law took her to Calcutta on 13.02.2011 from where she went to Andaman on 14.02.2011. She became pregnant second time in August. She was with her in laws and after being ill she went to her parental house in February. She was treated by her parents in Hajipur. Hundai Car was purchased in her name and husband forcibly sold it and also kept the amount. She has denied of having any email address.

24. When in September 2012 she went to her matrimonial house her in laws refused entry to the house and with the help of neighbours and intervention of police she entered her matrimonial house.

25. In support of her case respondent has examined

19/37 four witnesses and 17 documents have been Exhibited which has been marked as Exhibits 1 to 17 before the Family Court.

26. D.W.-2 is father of respondent/wife who on oath has stated that it was an arranged marriage and he had given cash and other household articles at the time of marriage. After marriage his daughter went to her matrimonial house in Hajipur and returned back and thereafter on 25.06.2010 she again went to her matrimonial house and there was much change in the conduct and behaviour of her in laws. His son in law became agitated on trivial issues and on 03.07.2010 he went to Andaman and Nikobar and thereafter her in laws tortured his daughter for dowry of Rs. 10 lacs and she became ill but was not being treated and he send her to Andaman and Nikobar on 03.11.

2010 where she lived happily and became pregnant and his daughter wanted to return to her parental home but his son in law refused and send her to her matrimonial home, where her in laws got sex determination done and informed his son in law that a female child is in the womb and she was asked to get it aborted and on her refusal she was assaulted by her in laws. On 13.02.

20/37 will complaint to the police and thereafter she was admitted in Apollo Hospital. However, there was miscarriage. In April 2012 both returned and his son in law told that if she wants to live with him then his father has to book a flat for him in Delhi. My daughter became ill but she was not given proper medical care as such her daughter called his brother and thereafter she went to doctor when she came to know that she has become pregnant. As he did not give Rs. 10 lacs in dowry nor booked any flat in Delhi the car which was given was sold and his son in law and his father withdrew all the amount deposited in the bank. A female child was born to his daughter which made her in laws very sad and they did not attend the Chhati function and her daughter was tortured by her husband and in laws for nonfulfillment of demand of dowry. He has also stated that the recorded voice is not of her daughter. He has denied that his son in law was attacked by knife outside the court premises. The case has been filed on false and concocted allegations.

27. In his cross-examination he has stated that his daughter was the owner of car. He had gone to the matrimonial house of his daughter 2-4 times and on 17.02.2013 when she was ousted. He has no evidence of demand of Rs. 10 lacs. He had not gone to Chandigarh to see the mother-in-law of her

21/37 daughter. He denied that he got father-in-law and mother in law of his daughter arrested by playing fraud. He denied that his daughter used to call her husband ugly.

28. D.W.-3 Gopal Kumar Chaubey has stated on oath that he knows both the parties very well. He was a tenant in his house in the year 2010 when the marriage was solemnized. After 2-3 days of coming of respondent/wife reception was organized and has denied that she shouted or used filthy language when she was asked to open the presents given in reception. Her mother in law was operated in Chandigarh hospital. He has stated that in laws of respondent used to torture her and has denied that behaviour of respondent/wife was cruel. He had the opportunity to see the dispute between them.

29. D.W.-4 is the elder brother of respondent/wife. He has repeated all the statements which has been made by his father and sister. Case under Domestic Violence Act was filed in Siliguri and he had gone to Hajipur police station who enforced said order. Police had also gone. However, the order was stayed by High Court. They had filed case under Section 498A so that dispute would be settled. He has denied that his sister used filthy language on mobile.

30. The Family Court had framed seven issues for

22/37 adjudication and by impugned order on the basis of evidences adduced by the parties dismissed the case of appellant/husband seeking divorce on sole ground of cruelty. Hence this appeal challenging the judgment and decree of Family Court has been filed on behalf of appellant/husband.

31. After hearing the parties and considering the materials available on record and going through the oral as well as documentary evidences adduced by the parties before the Family Court the appellant/husband has been able to establish following incidents of cruelty meted out by respondent/wife on him.

(i) Relation between husband and wife became bitter soon after marriage. The appellant/husband has stated in his deposition as well as in his pleadings that on the very next day after reception the respondent/wife was asked to open the presents in presence of all family members and relatives as well as neighbours who had come to the house to see the presents which is a tradition being followed in all families. The respondent/wife became furious and started shouting on the husband and other family members in presence of relatives and ladies who had come from neighbourhood causing much embarrassment to appellant/husband and she also used filthy

23/37 language against her husband and also insulted his parents and used derogatory language against them which cannot be expected from a newly wedded bride. She publicly said " Uphar Me Mila Saman Tumlogo Ke Bap Ka Nhi Hai, Na To Kisi Ko Dikhaungi Na Dekhne Dungi. Ise Mai Chapra Le Jakar Rakhungi." These allegations are supported by independent witnesses and there is nothing in the cross-examination to disbelieve the incident which took place soon after the marriage. (ii) Respondent/wife never paid any respect and regard towards his mother in law and father-in-law. She used to say that her mother-in-law is "KANTA" in her life. Her behaviour towards them was harsh and cruel and on account of her conduct the heart problem suffered by his mother got aggravated and she was admitted in the Chandigarh hospital and surgery was performed of her heart and she remained in the hospital for considerable period but respondent/wife never came to see her ailing mother-in-law. The reasons assigned by respondent/wife for not visiting her ailing mother-in-law is not convincing.

(iii) After marriage it was expected that respondent/wife will take proper care of her ailing mother in law and elderly father in law when appellant/husband was on his

24/37 duty posted outside but during said period respondent/wife did not take any care of her mother in law or father in law and as such her elderly sister and niece had to remain in the house to take proper care of his parents. Respondent/wife also humiliated and used derogatory language against his sister and niece that they are characterless and dependent upon others and also tried to oust them from the house although they remained there only to take care of her ailing mother and father while respondent/wife failed to discharge her obligation as daughter in law.

(iv) Against his wish the respondent/wife did not accompany him to Andaman and Nikobar on 03.07.2010 the place of his posting and he had arranged her ticket in December but in spite of it and against his wish she was sent to Andaman and Nikobar in November by her father leaving his parents unattended and uncared.

(V) In port Blair also she indulged in activities which was disliked by the appellant/husband and also tried to put obstacles in his performance of his duty by concealing the key of car and official files only to cause trouble and anguish to appellant/husband. He had to go to his office by taking auto as respondent/wife hide the key of his car on 30.03.2010.

25/37 (vi) On 15.04.2011 she locked herself in the room and appellant had to break open the door causing much embarrassment to him at the place of his posting. On 22.05.2011 she attempted to hang herself and also threatened that she will immolate herself as marriage was solemnized against her wishes. She used to call appellant/husband ugly and not suitable of being her husband. She locked her in the room for two days and not allowed appellant to enter the room.

(vii) On 17.09.2011 she went to her parental home after locking all articles, presents and gifts and also articles of her husband in Almirah, trunk and boxes and took away the key with her.

(viii) According to respondent/wife only after giving threatening that she will make a complaint before police she was admitted in Hospital at Hyderabad where she remained from 15.02.2011 to 21.02.2011 as such her contention that in Andaman and Nicobar their relations were cordial is not true. She has also complained that her life was made hell in Andaman.

(ix) Car was purchased in the name of respondent/wife and she sold the car and deposited the amount in her saving account but has alleged that she had given ATM

26/37 card to her husband who withdrew all the amounts in name of booking a flat in Delhi but same was never booked but in a given situation when the relations between the husband and wife were strained it is difficult to believe that respondent/wife had given her ATM to husband to withdraw whole amount. (x) Respondent/wife used to humiliate appellant whenever he went to meet her in Siliguri in her parental home and also refused her marital obligation as a wife and also prevented her daughter to meet him.

(xi) A case was lodged against him and other family members under Section 498A of IPC and by playing fraud her parents were got arrested by the police in guise that they had come to settle the dispute.

(xii) She filed a case in Siliguri in 2014 under the Domestic Violence Act and took the help of police while returning to her matrimonial house in Hajipur putting his parents in uncomfortable position before the neighbours and relatives.

(xiii) The Principal Judge, Family Court, Hajipur had called both parties on 05.07.2014 for reconciliation but same

27/37 failed and when appellant went outside he was assaulted by his in laws and their hired criminals in which he was injured and he instituted FIR P.S. Case No. 540/14 in which police submitted Final Form as case to be true but accusation false and on protest petition of appellant cognizance has been taken against his in laws.

(xiv) The respondent/wife has alleged that on being pregnant she was sent to her matrimonial house on 07.02.2011 and sex determination was done on 09.02.2011 and she was assaulted to abort the female child and thereafter her father in law send her back on 13.02.2011 and she reached Andaman on 14.02.2011 and she was admitted in Apollo Hospital on 15.02.2011 only after she threatened appellant that she will lodge a complaint before police and thereafter again came to her matrimonial house alongwith appellant in April 2011 and went back to port Blair in July 2011 has been denied by appellant and appellant has stated that she was all along present with him in the port Blair with him during these periods. However, it was admitted that she remained in Apollo Hospital, Hyderabad for the period from 15.02.2011 to 21.02.2011 because of complaint of bleeding.

32. The Apex Court in case of Ramchander Vs. Ananta since reported in 2015(11) SCC 539 in para 10 has held

28/37 as follows:-

10. The expression "cruelty" has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case4 this Court set out illustrative cases where inference of "mental cruelty" can be drawn and they are only illustrative and not exhaustive.

33. The Apex Court in case of Ravi Kumar Vs. Julmidevi since reported in 2010(4) SCC 476 in para Nos. 19 and 20 has held as follows:-

19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible.

In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty.

Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations

29/37 may amount to cruelty.

20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula.

Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words.

That possibly explains why Lord Denning in Sheldon v.

Sheldon3 held that categories of cruelty in matrimonial cases are never closed.

34. The Apex Court in case of Samar Ghosh Vs. Jaya Ghosh since reported in 2007(4) SCC 511 has dealt with Types of mental cruelty by illustration paragraph Nos. 100, 101 which is quoted below:-

100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances...."

101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would

30/37 not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(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.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life

31/37 would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair.

The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

35. The Apex Court in case of Praveen Mehta Vs In--- Mehta since reported in 2002 (5) SCC 306 in para 21 has held as follows:-

32/37

21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living.

The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.

36. Division Bench of this Court in case of Smt. Ekta Devi Vs. Bijay Kumar Kyal since reported in 2017 (2) PLJR 51 in para Nos. 7 and 8 have held as follows:-

7. We have heard the parties and examined the evidences. Learned counsel for the appellant-wife submits that merely using abusive language towards the husband and elders and even occasionally assaulting the husband cannot be termed as cruelty. We respectfully disagree. If the husband abuses and assaults the wife, he would be liable to criminal charges but if what we have

33/37 understood from the submission that if the wife does the same, then not only it is not a criminal offence but it does not also constitute cruelty, cannot be understood. Our society has not degenerated to such a level where a lady of the house would have free mouth to abuse the elders with filthy abuses regularly and occasionally even assaulting her husband and to accept that would not constitute a cruelty cannot be accepted, Cruelty cannot be defined by any straight jacket definition. It depends upon various factors. Behaviour of one party to matrimonial alliance in a manner not compatible to the relationship and making it unworthy of peaceful conjugal life would constitute cruelty. Mere denial of allegation is not sufficient.

We have no reason to take a different view of the matter on the evidence that was led before the trial Court which we have perused. We may only add, as has been noticed by the Apex Court in the case of K. Srinivas vs. K. Sunita MANU/SC/1050/2014 : (2014) 16 Supreme Court Cases 34 : [2015 (1) PLJR (SC) 126], that the fact that the wife, after matrimonial case is filed, files case punishable for the offense under Section 498-A, IPC against the husband and family members itself shows cruelty.

8. We failed to understand why such cases are advised to be filed from the side of the wife, after divorce is sought for by the husband, if not to trouble the husband. Wife should understand that once her husband or his relations are, pursuant to the allegations made by the wife, are taken into custody, whatever little chance of reconciliation there may be, is totally destroyed. In this case also, the same thing was done and it did not stop there. Even though in the written statement, the wife did not allege any immorality against the husband but when she came to depose in the Court, she made serious allegations of immoral character, extra marital affairs against her husband. All this was beyond the pleadings and had no foundation. If we see all these things together, the conclusion is irresistible. The behaviour of the wife cannot be anything but cruelty.

37. The Apex Court in case of K. Sriniwas Rao Vs. D.A. Deepa since reported in 2013 (5) SCC 226 in para 31 and 32 has held as follows:-

31. We are also satisfied that this marriage has irretrievably broken down.

34/37 Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree.

32. In V. Bhagat8 this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight.

The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty this Court observed that:

(SCC p. 351, para 21) "21. ... Irretrievable breakdown of the marriage is not a ground by itself. But, while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind."

38. The relations between husband and wife has deteriorated to such an extent that all efforts of reconciliation has failed and no emotions is left in the married life and it has become a dead marriage. There is much bitterness between the parties and there is no hope of resumption and reunion of

35/37 marital life between the parties. There is difference of temperament and total incompatibility in the marital relationship as such there is no sense in keeping the marriage alive. The finding of family court that dispute between husband and wife are normal wear and tear of married life is not acceptable to this court. The marriage is broken to the extent of beyond repair. The appellant/husband has been able to established a sustained attitude on the part of respondent/wife to humiliate and torture and acting in a manner causing damage to his reputation and showing disrespect and apathy towards his parents and levelling scandalous allegation against her sister and niece and acting prejudicial to the interest of appellant. The respondent/wife has shown scants regards to the emotions, feelings and likes/dislikes of appellant.

She used to pickup quarrels on trivial issues and always tried to dominate the relations at any cost. The behavioural pattern shows total incapability in the life style, likes/dislikes and despite all efforts made by appellant/husband to make her wife understand, she remained obstinate in her attitude. She also refused to cohabit with appellant when he went to her parental home while she was residing there and humiliated appellant and did not allow him to meet his daughter.

36/37 mental attitude of his wife she remained adamant and her behaviour and conduct remained painfully consistent and gradually became more graver. For the reasons has stated the judgment and order of the Family court is not sustainable and is accordingly set aside. The marriage between appellant/husband and respondent/wife is dissolved by a decree of divorce.

39. As the marriage has been dissolved respondent/wife and her daughter who is living with her are entitled for permanent alimony for their sustenance. The amount of alimony should be fixed for wife as such that she can live with dignity and reasonable comfort and not in penury. The appellant/husband had offered Rs. 15 lacs and is ready to pay said amount. Under facts and circumstances of this case, this Court directs Rs. 20 lacs to be paid to the respondent/wife by the appellant/husband as permanent alimony within six months from the date of judgment and order. The amount to be deposited in the saving bank account Number of respondent/wife within six months from the date of judgment and order. This Court also directs appellant to fix deposit Rs. 5 lacs in the account of his minor daughter which can be encashed by her after attaining majority within the said period. This will be full and final settlement between the parties and any order

37/37 passed for maintenance/interim maintenance in any proceeding shall cease and become inoperative. The daughter is in custody of her mother and she will remain as such. However, appellant is at liberty to move appropriate forum for custody of child and for visiting rights.

40. The appeal stands allowed.

(Dr. Ravi Ranjan, J) ( S. Kumar, J) veena/- AFR/NAFR NAFR CAV DATE N.A.

Uploading Date 25.10.2018 Transmission Date N.A.