H.H. Beena Kumari v. Deepak Ram

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] *** PRESENT: THE HON'BLE JUSTICE HARISH TANDON AND THE HON'BLE JUSTICE SHIVAKANT PRASAD FAT/1/2020 H. H. BEENA KUMARI ... APPELLANT

VERSUS

DEEPAK RAM ... RESPONDENT For the appellant :

Mr. Krishna Rao, Advocate For the respondent :

Mr. N. A. Khan, Advocate Heard on :

September 16th & 17th , 2021 Judgment on :

September 20, 2021 SHIVAKANT PRASAD, J.

This appeal is directed against the judgement and decree passed by learned Judge Family Court at Port Blair in Matrimonial Suit of 137 of 2017 (Smt H.H. Beena Kumari vs. Deepak Ram) whereby and whereunder the learned Judge dismissed the suit filed by appellant for decree of divorce under section 13 (1)(ia), (ib) of Hindu Marriage Act, 1955 inter alia on the ground that the impugned judgement and decree is bad in law and in fact because the learned Judge has failed to appreciate the evidence placed on record in respect of the ground of cruelty warranting dissolution of the marriage by decree of divorce.

The brief facts leading to the instant appeal is that the appellant is the legally wedded wife of the respondent and their marriage was solemnized on 10.06.2015 at Vaikunth Dham, Police Temple, Port Blair as per the Hindu Rites and Customs. After marriage, they resided together at the brother's house of the respondent at Bird Line and their marriage was consummated. Thereafter, they shifted in Hotel at Dugnabad for three days. On 16.06.2015 respondent left for Mumbai leaving the appellant at her parents house. After reaching Mumbai, respondent discontinued calling her and it was the appellant who was frequently calling him but he had never shown any affection in talking to her.

In the last week of July, 2015, the respondent came to Port Blair but did not come to her parents house to meet her instead he called her at her friend's house at Lambaline where he was staying in the house of a lady. He asked the appellant to stay in that house but she refused. She requested him to come to her house at Bird Line which the respondent refused. The female friend of the respondent chalked out a programme and they went to Rangat on tour and returned after a week to Port Blair, appellant asked her to stay at her parents house for some days and he would be staying at her brother's house. He also told her that he would taking her to Mumbai to meet his sister.

The appellant got an information that the respondent was found roaming with a lady and having doubt in her mind, she went to Lamba Line and she was shocked to see the respondent residing with that lady. On 01.09.

that he was not interested to marry her but for his relatives, he had to marry her. It is further case of the appellant that her husband loved to spend time in night clubs. On the next day, she came to know that she was pregnant and also learnt from her husband's sister that the respondent was aged about 48 years but at the time of marriage, the respondent and his family members told that he was 35 years old only. Being advised by the Doctor, she was admitted in a Nursing Home at Mumbai but the respondent only used to come there during night hours under the influence of alcohol. The husband used to ill-treat her and after discharge from hospital she along with the respondent returned to Port Blair on 07.10.2015 and she was asked to stay at her parent's house. On 11.10.2015, appellant suffered severe stomach pain.

Respondent was called for several time but he did not respond to her call and then the appellant was admitted in a clinic at Bathubasthi and where she undergone miscarriage. Maternal aunt of the appellant went to Lambline to inform the respondent then, he came to see the appellant.

It is also contended that while leaving the clinic, her husband told her that he was not ready to bear any expense, if the child would have been born. This caused severe mental shock to the appellant and she became completely bed-ridden for ten days but respondent did not visit her, though she asked him to take her back but he did not. Evidence on record also revealed that the respondent had no liking for the

appellant as he told that if she insisted him to reside with her, then he would be using her as an instrument. Such utterances by the respondent caused humiliation and insult to her for which she attempted to commit suicide by consuming poison but she was rescued by her parents. Such situation resulted in souring relationship in their marital life and it was not possible to reside with the respondent. The respondent-husband contested the application by filing a written statement denying all material particulars made in the application and contended inter alia that the marriage was consummated but the intention of the appellant was to stay with her mother at her maternal home and he left her at Dairyfarm as she desired it but was always in contact with her through whatsapp and text messages.

After arriving to Port Blair he went to Dairyfarm. The respondent has admitted in evidence that he had a lady friend namely, Pratibha since before their marriage who was regarded by the appellant -wife as her elder sister and he never asked her to stay at his friend's house rather they had planned to go on a family tour in North and Middle Andaman.

It is further contended on behalf of the respondent that his female friend had invited them to her house as they were newly wedded couple and the said proposal was accepted by them for going to Kadamtalla and Rangat with the family. According to the respondent as he had to go out for some urgent business so he had asked his wife to stay with her sister but admitted in evidence that he used to go to night club

while staying alone in Mumbai but he never had been to night club in presence of the appellant. Before going to Mumbai, she knew that she was pregnant as it was confirmed by the Doctor of Swasthiya Clinic, Bathubasthi and also knew about his age before their marriage and since the appellant was having urinary track problem, she was undergoing treatment at the said clinic and used to visit her in hospital and bring home cooked food for her. He had never shown any disregard towards her. The Doctor advised her bed rest, and as she was upset after the miscarriage, he advised her to stay with her mother but when he had heard about the pregnancy report he was very happy. On the pleadings of the parties, the learned Trial Judge framed as many as five issues. Issue 2 related to ground of 'cruelty' inflicted on the appellant-wife and issue 3 related to the ground of desertion for a continuous period of more than two years immediately proceeding the presentation of the matrimonial suit as the grounds for dissolution of marriage.

Mr. Krishna Rao, learned advocate for the appellant pointed out that the marriage between the parties is not in doubt which was solemnized and consummated on 10.06.2015 at Vaikunth Dham, Police Temple, Aberdeen Bazar, Port Blair and after marriage the appellant was taken by the respondent to his brother's house at Birdline wherein the marriage was consummated. It is submitted that admittedly the respondent has his own house in Port Blair but instead of going to his house, he took the appellant to his brother's house and stayed with the

appellant only for three days and after three days of their stay in his brother's house, the appellant was taken to a hotel at Dignabad where they resided together for three days and just after six days of their marriage on 16.06.2015, the respondent left the appellant in her parent's house and left for Mumbai, but he never bothered to call appellant though the appellant was frequently calling him but he did not bother to receive her calls. The respondent came back to Port Blair in the last week of July, 2015 but he did not come to the parent's house of the appellant to see her, though he came to Lamba Line village in the house of his female friend. When the appellant went to the house of his friend, the respondent was found in the house of one lady and he introduced that lady as his best friend.

The appellant requested the respondent to stay with her in her parent's house at Birdline but he refused the proposal of appellant to reside together. Instead of residing with her in her parent's house, the respondent made a tour programme for trip to Rangat for a week with his lady friend who had also accompanied them. It is proved on evidence that the respondent was residing with his lady friend at Lamba Line and was moving with her. On seeing this, the appellant was very much shocked. The respondent took the appellant to Mumbai on 01.09.2015 and left the appellant in the house of his sister, a very old lady. The appellant found that during stay at Mumbai, her husband used to come to house at late night, that too, under the influence of liquor and used to ill treat the appellant.

It is also the case of the appellant that the sister of the respondent was not interested to bear the expenses of the appellant.

brought her at Port Blair on 07.10.2015 and left her in her parents house.

The appellant suffered severe stomach pain on 11.10.2015 and the appellant as well as her mother called the respondent over phone but he never bothered to receive the call. So, mother took her to a clinic for her treatment but unfortunately, she suffered miscarriage. As the respondent had failed to receive the phone calls of the appellant, her mother had to send one relative to the house of the friend of the respondent to inform him and after getting information, the respondent came to see her but immediately thereafter the appellant left the clinic by telling that it was nice as there was miscarriage and respondent was not at all ready to bear any expense of child if would be born. The appellant suffered severe mental shock and she was totally bedridden for more than ten days.

During cross examination, the respondent has admitted that after the marriage, the respondent along with the appellant stayed in a Hotel at Dugnabad for three days and he left the appellant in her parents house after staying for three days in a hotel. The respondent also admitted that he had returned to Port Blair from Mumbai in the end of July, 2015 and stayed at his brother's house and the appellant had called the respondent over phone. During crossexamination, the respondent also admitted that he called the appellant at his lady friend's house namely Pratibha many times and while returning from Kadamtala, the respondent got down first and his lady friend Pratibha had dropped the appellant to her parents house.

admitted by the respondent in his evidence that he used to go to meet his friend Pratibha and also admitted that appellant and respondent are separately residing since the year 2015. The respondent admitted that the appellant was sent to her parents house after returning from Mumbai and he never tried to make his own family after marriage. It is also admitted by respondent who deposed as DW-1 that he never lived together with the appellant in his own house though he has a house at Port Blair.

DW-1 adduced in evidence the call details being Exhibit A & B (objected to) in support of proof that he was in touch with the appellant over phone but learned Judge did not ascertain the mobile number of the appellant on which the respondent claimed to have made calls to the appellant. It appears that said call details Exhibit-A & B were marked on objection. So, they cannot be accepted in evidence without proof of the contents therein. It is settled principal that a document may be marked as an exhibit for the perusal but contents of the same need be proved. The call details exhibit A and B are not duly certified by the concerned authorities as required under the provision of Section 65 B

(4) of the Evidence Act as well as the Information and Technology Act. While deciding the issue relating to the ground of cruelty, the learned Trial Court took note of the averment in the paragraph 39 of the plaint, wherein the appellant wife has alleged that she was subjected to severe humiliation, physical and mental torture by the

conduct of the respondent. But there is nothing mentioned in the plaint as to when and how she was physically tortured by the respondent. It is true that there is no evidence regarding the physical torture meted to the appellant wife but in our opinion the fact of humiliation that the appellant has suffered undoubtedly would cause mental cruelty.

In paragraph 23 of the plaint, the appellant disclosed that why she was admitted in nursing home in Mumbai for health check up. Respondent used to come during night hours and that too fully under the influence of liquor and used to ill-treat her. Learned Judge disbelieved the evidence and averments so made by the appellant on the score that what was the mode of torture was not clear from the plaint and that could not fall within the purview of physical cruelty. Although, there is no physical torture meted out to the appellant but it is admitted by the respondent himself that in Mumbai he used to attend night club. Obviously, it is common knowledge that he would consume alcohol at night club and if he was attending the nursing home at night then he must be visiting the place in drunken condition.

Such act by itself, in our opinion, would amount to mental cruelty. Admittedly, the marriage took place between the appellant and the respondent at Birdline in the house of the brother of the respondent and after marriage she stayed for three days with her husband in his brother's house and thereafter her husband left for Mumbai leaving the appellant at her parents house at Dairy Farm.

Therefore, it cannot be said that it was the desire of the appellant that she should stay in her parents house since the respondent left the appellant for his work place in Mumbai and did not make any connection with her while he returned to Port Blair in the last week of July, 2015.

We have found from the evidence of the appellant before the Trial Court that she candidly stated on oath that when her husband returned from Mumbai, he was staying with his lady friend in her house at Lamba Line and he had asked the appellant to stay with him at that place. Such behavioral pattern of the respondent does amount to humiliation as narrated in the plaint. Learned Judge has taken note of the plaint averment in respect of another incident that the appellant along with the respondent and his lady friend went on tour in North and Middle Andaman and while returning on 28.07.2015, the appellant asked him to stay at her parents house for few days but he left there saying that he would be staying in his brother's house.

She received information from one of her relatives that respondent was seen roaming with a lady and had doubt in her mind then she left to Lamba Line and found the respondent residing with the said lady. So, obviously, in all probability and in natural course, such behaviour of one spouse would cause mental shock to her and this does amount to mental cruelty inflicted on her.

he had married her and she also learnt that the respondent was aged 48 years at the material point of time when he got married with the appellant but at the time of marriage, he had disclosed his age as being 35 years of age. She had also heard the respondent speaking over phone to the Pandit that he was never interested in her to go for marriage but only to satisfy his brother, he accepted her as his wife. It is also in the evidence that the respondent after taking her to Mumbai had left her at his sister's house where she was uncomfortable and requested him not to leave her with his sister, but on hearing this, he became wild and told her that he would be returning late spending time at night club. On the next day, she felt uneasiness and started vomiting.

She was taken to a doctor in the hospital and her sister-in-law came to know that she was pregnant. On 07.10.2015 they returned to Port Blair but the respondent did not stay with her. On 11.10.2015 she suffered severe stomach pain and her mother had called the respondent several times but he did not respond. So, the appellant was got admitted by her mother in a clinic at Bhatubasti where there was a miscarriage. The respondent came to see her on being informed by her aunt but he left her telling that it was nice as there was miscarriage because he was not ready to bear any expense if the child would have been born. This sort of incident in our opinion, no doubt, is shocking instance for her and it tells upon the mental health of the appellant.

of mental cruelty meted out to her by taking cue from various decision of the Hon'ble Apex Court observing that the facts of the case narrated by the appellant do not come within the purview of cruelty. As regards the issue relating to cruelty as a ground for divorce, the learned Court has reproduced the observation made in case of Savitri Pandey vs. Prem Chandra Pandey reported in (2002) 2 SCC 73 wherein it is observed that- "Treating the petitioner with cruelty is a ground for divorce under Section 13(1) (i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health.

Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life.

It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent.

The learned Judge also has taken note of the decision in case of Parveen Mehta vs. Indrajit Mehta reported in (2002) 5 SCC 706 wherein it has been held that "Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior 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 behavior or behavioral pattern by the other. Unlike the case of physical cruelty the 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 misbehavior 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." The learned Judge took note of the fact that the above views were also accepted in case of Vishwanth vs. Sau Sarla Vishwanth Agrawal reported in 2012 AIR (SC) 2586. The landmark judgement of the Hon'ble Supreme Court in Samar Ghosh vs.

Jaya Ghosh reported in (2007) 4 SCC 511 has also been relied by learned Trial Court noticing certain illustrations in respect of mental cruelty.

It has been observed in the cited decision that "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 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 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 sterilization 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. Thus, bearing in mind the above guiding prinicples and the circumstances, the learned Trial Court was of the view that the facts disclosed by the appellant do not warrant granting decree of divorce on the ground of cruelty as the conduct of the respondent does not amount to mental cruelty.

Mr. Krishna Rao, learned advocate for the appellant pointed out that there is no evidence adduced by the respondent to corroborate the

averments made in his written statements that they knew each other since before their marriage and that they had met many times before their marriage and started liking each other therefore, got married. It is urged that there is no such averments in the written statement and so also in his deposition. With regard to the respondent speaking over telephone to the Pandit about his disliking the appellant to marry her, yet marrying her to satisfy the wish of his relative. Such evidence of the PW 1 and PW 2 was not accepted as credible evidence by the learned Judge because the Pandit was not brought before the Court to support the contention so made on behalf of the appellant as the direct knowledge of such instance has to be ascertained by examining the said Pandit as to whether such word was at all uttered by the respondent or not.

In our view, it is axiomatic from the evidence of PW-1 and PW-2 that the appellant has suffered mental agony due to the conduct of her husband the respondent as narrated by her. Hence, the learned Judge ought to have believed the facts pleaded by the appellant in her pleading as well as in her evidence about the humiliation suffered by her at the hands of her husband for which she once tried to commit suicide. The learned Judge appears to have discarded the version of the appellant observing that even such conduct is taken to be true that cannot be considered for granting a decree of divorce as there was no case registered against the respondent for abetment to commit suicide or torture. We are of the view that although there was no case of attempted

suicide yet the appellant having suffered agony, has made such statement. It is true that there is no case for abetment to commit suicide or the act of physical torture so as to compel her to commit suicide but a person who gets mentally disturbed or sometimes, a person who is otherwise ignored may develop a tendency to commit suicide.

Although, the learned Judge took note of the fact deposed by the appellant that the respondent-husband was found staying with his best lady friend in her house at Lamba Line, roaming with her merrily after having returned from Mumbai without his attempt to meet his wife, the appellant herein, and to visit his parents-in-law and without any attempt on his part to take her to his own house to provide a stable matrimonial home for her, yet her such version was negated and not accepted as amounting to mental cruelty, even though it is crystal clear observation that such behaviour on the part of the respondent undoubtedly is a serious allegation but since no step was taken by the appellant for redressal by way of registering any case of adultery, no presumption of such fact could be drawn that the respondent was leading adulterous life.

Such observation, in the given facts of the case, appears to be perverse in our considered view inasmuch as it is admitted by the respondent himself that Pratibha is his best lady friend with whom he was staying, having come from Mumbai and stayed with her and also called his wife the appellant herein to stay with them. This piece of evidence on admission by the respondent would undoubtedly amount to mental cruelty.

husband was aged 48 years whereas he had disclosed his age as 35 years at the marriage. This also amounts to practicing fraud in marriage.

What constitute mental cruelty to a wife. As we understand from the judgment law that expression 'cruelty' has not been defined in the matrimonial law i.e to say Hindu Marriage Act, 1955 though the cruelty is one of the ground for seeking a decree of divorce by dissolution of marriage under section 13(1)(i-a) of the Act but the term may be defined as willful and unjustifiable conduct of such character to life, limb or health, bodily or mental so as to give rise to a reasonable apprehension of such danger and the court has to depend on external aid in each and every case bearing in mind attending circumstances. Thus, the cruelty has inclusive definition i.e. physical and mental cruelty and cruelty in the events that adversely affects mental and physical health, social status and life style of other party.

Continuous presence of ill-treatment or mental or physical torture to either of spouse would also amount to cruelty as illustrated by the Hon'ble Supreme Court in Samar Ghose case (supra) and we feel that the learned Judge has failed to even appreciate the principle as noted in the above cited decision in marshaling out the facts of the instance case.

home. In other words, respondent never cared to provide a stable matrimonial home for her living since after the marriage rather he left her at her parents house and once when she was taken to Mumbai in his work place, he asked her to stay with his old sister. Mental stress can happen in various ways. So there is no inexorable criteria or set formula which would amount to cruelty and it is necessarily a matter of inference to draw from the facts and circumstances of each case. Looking at the background and circumstances, on appraisal of evidence on record, we find that the parties are in splitsville for long though ground of desertion is not in proof inasmuch as the marriage took place on 10.06.2015 and the respondent left for his work place in Mumbai and the suit was instituted only on 13.06.

2016, hence, the continuous period of two years immediately after presentation of the petition was not available to the appellant to warrant grant of a decree on the ground of desertion. Now, having given an anxious consideration to the facts and circumstances and careful thoughts over the issues, we reach to this conclusion that the appellant has been able to substantiate the ground of cruelty warranting grant of a decree of divorce by dissolution of marital tie between the appellant and the respondent. Accordingly, the impugned judgement dated 19.12.2019 passed in Mat. Suit No.137 of 2017 by the learned Trial Court is hereby set aside. Consequently, the appellant is entitled to a decree of divorce dissolving her martial tie with the respondent from the date of decree.

Let the lower court record together with the copy of this judgement be sent down to the learned Trial Court for necessary information and doing the needful.

( Shivakant Prasad, J.) I agree.

( Harish Tandon, J. )