# Anil Kumar Jain v. Smt. Kalpana Jain

- **Citation:** (2019) 2 ILRA 885
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-01
- **Case number:** First Appeal No. 167 of 2012
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-jain-v-smt-kalpana-jain-44789
- **Pages:** 13

## Headnote

A. Hindu Marriage Act, 1955 - Section 13
(i-a)- Cruelty - If no specific instance of
physical or mental cruelty is pleaded,
divorce on ground of cruelty cannot be
granted.
Held: - Husband not gave any specific
instance of such act on the part of the wife,
which may constitute physical or mental
cruelty - Only stated that wife refused to do
house hold work - This by itself does not
amount to commission of cruelty. (Para 24)
B. Hindu Marriage Act, 1955 - Decree of
restitution of conjugal rights- Husband
not honouring decree of restitution of
conjugal rights - Adverse Inference
drawn against him.
Held:-Decree of restitution of conjugal rights
was granted in favour of the wife, yet inspite
of the same the husband not honoured the
same - That proved that the wife had not
deserted the plaintiff' (husband) but that wife
was ousted from her matrimonial home
without any reason. (Para 23)
Appeal failed (E-5)
List of cases cited: -

## Text

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2 All. Anil Kumar Jain Vs Smt. Kalpana Jain
885
(2019)10ILR A 885

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 167 of 2012

Anil Kumar Jain Appellant
Versus
Smt. Kalpana Jain ...Respondent

Counsel for the Appellant:
Sri Swapnil Kumar

Counsel for the Respondent:
Sri S.K. Purwar

A. Hindu Marriage Act, 1955 - Section 13
(i-a)- Cruelty - If no specific instance of
physical or mental cruelty is pleaded,
divorce on ground of cruelty cannot be
granted.
Held: - Husband not gave any specific
instance of such act on the part of the wife,
which may constitute physical or mental
cruelty - Only stated that wife refused to do
house hold work - This by itself does not
amount to commission of cruelty. (Para 24)
B. Hindu Marriage Act, 1955 - Decree of
restitution of conjugal rights- Husband
not honouring decree of restitution of
conjugal rights - Adverse Inference
drawn against him.
Held:-Decree of restitution of conjugal rights
was granted in favour of the wife, yet inspite
of the same the husband not honoured the
same - That proved that the wife had not
deserted the plaintiff' (husband) but that wife
was ousted from her matrimonial home
without any reason. (Para 23)
Appeal failed (E-5)
List of cases cited: -
1. Smt. Sarita Devi Vs Sri Ashok Kumar Singh
(2018) 3 AWC 2328
2. K. Srinivas Rao Vs D.A. Deepa (2013) 5 SCC
226
3. A. Jaya Chandra Vs Aneel Kaur 2005 (2)
SCC 22

(Delivered by Hon'ble Sudhir Agarwal, J.
Hon'ble Rajeev Misra, J.)

1. This appeal under Section 19 of
the Family Courts Act, 1984 ( hereinafter
referred to as Act of 1984) has been filed
by the plaintiff (husband) assailing the
judgment and decree dated 29.02.2012
passed by Principal Judge, Family Court,
Agra in Divorce Petition No. 457 of 2004
whereby the suit of the plaintiff-appellant
for divorce filed under Section 13 of the
Hindu Marriage Act, 1955 (hereinafter
referred to as Act of 1955) has been
dismissed.

2. We have heard Sri Swapnil
Kumar, Advocate for plaintiff-appellant
and Sri S. K. Purwar, learned counsel for
the defendant-respondent.

3. From record it transpires that
initially marriage of the appellant Anil
Kumar Jain was solemnized with Smt.
Nishi Jain on 12.04.1991. From aforesaid
wedlock, two daughters namely Gazal
Jain
and
Geetika
Jain
were
born.
Unfortunately, Smt. Nishi Jain, wife of
the
appellant,
died
on
12.04.1991.
Accordingly,
plaintiff-appellant
performed his second marriage with the
defendant
Smt.
Kalpana
Jain
on
14.11.1994. The aforesaid marriage was
solemnized in accordance with Hindu
Rites and Customs. It is the case of the
886 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant that after almost more than nine
years of marriage, the defendant-wife
deserted the appellant on 25.05.2004 and
went to her paternal home, without
disclosing the grounds for leaving the
matrimonial
home.
The
appellant
thereafter filed Marriage Petition No.457
of 2004 (Sri Anil Kumar Jain Vs. Smt.
Kalpana Jain) before the Family Court,
Agra, for a decree of divorce on the
ground of cruelty.

4. At this stage, the defendant-wife
filed Misc. Case No. 155 of 2005 under
Section 9 of the Hindu Marriage Act i.e
regarding Restitution of Conjugal Rights.
At this very juncture, the defendant-wife
also initiated proceedings before the
Rajasthan State Commission for Women
in which the plaintiff-husband appeared.
On
28.12.2005
the
plaintiff-husband
specifically stated before the Rajasthan
State Commission for Women that he
shall not keep the defendant-wife with
him.

5. While the aforesaid Marriage
Petition was pending, the defendant-wife
filed Case No. 146 of 2007 (Smt. Kalpana
Jain Vs. Anil Kumar Jain) under Sections
12, 18, 19, 20, 22 and 23 of the Protection
of Women from Domestic Violence Act,
2005. However, the aforesaid case came
to
be
dismissed
vide
order
dated
08.03.2010.

6. Ultimately, Misc. Case No. 155 of
2005 (Kalyani Jain Vs. Anil Kumar Jain)
for Restitution of Conjugal Rights was
decreed by the Family Court, Kota
Rajasthan vide judgement and decree
dated 16.03.2011. Against the aforesaid
judgement and decree, the plaintiffhusband has preferred Civil Misc. Appeal
No. 2088 of 2006 (Anil Kumar Jain Vs.
Kalpana Jain) before the Rajasthan High
Court and the same is said to be pending.

7. The Court Below by means of the
judgement and decree dated 29.02.2014
has dismissed the divorce Suit filed by the
plaintiff-husband. Thus, feeling aggrieved
by the aforesaid judgement and decree the
plaintiff-husband has now approached this
Court by means of the present Family
Court Appeal.

8. The plaintiff-appellant filed
Marriage Petition No. 457 of 2004 (Anil
Kumar Jain Vs. Smt. Kalpana Jain) on the
ground of cruelty. As per the allegations
made in the divorce petition, it was
alleged by the plaintiff-husband that
though the plaintiff had performed all the
marriage obligations towards his wife but
the wife has failed to reciprocate the
same. It was further alleged that after
marriage
the
defendant-wife
resided
substantially at her parental home and
spend very short time with the plaintiff at
his home in Agra. The defendant-wife
used to frequently leave her matrimonial
home and went to her parental home at
Kota, Rajasthan. It was also alleged that
while the defendant resided with the
plaintiff at Agra, her conduct towards the
plaintiff was always full of harassment
and
cruelty,
which
amounted
to
commission of physical and mental
cruelty upon the plaintiff-husband by the
defendant-wife. It was also alleged that
the defendant has refused to perform the
daily house hold job on account of which
the plaintiff and his two daughters have
been deprived of the benefit of home
cooked food and therefore of necessity
they have to eat outside which in turn has
a bad effect upon the health of the
plaintiff and his two daughters. The
defendant-wife does not behave cordially
2 All. Anil Kumar Jain Vs Smt. Kalpana Jain
887
with the two daughters of the plaintiff
born from the wedlock with the first wife.
The defendant indulges into scuffle and
exchange of hot words with the two
daughters resulting in immense mental
pain to the plaintiff. It was also alleged
that repeatedly the plaintiff requested the
defendant to modify her behavior but no
heed was paid by the defendant to the
same. To the contrary out of sheer
revenge the conduct of the defendant
became
more
outrageous
and
noncooperative. She not only exchanged hot
words with the plaintiff but also indulged
in fight with the plaintiff, which shows
her wrath towards the plaintiff and also
her outrageous character. It was also
alleged that the defendant-wife has
deprived
the
plaintiff
of
conjugal
relationship and inspite of repeated
request the defendant-wife has failed to
discharge
her
marriage
obligations.
Lastly, it was alleged that the defendantwife has left the house of the plaintiff on
26.05.2004 without disclosing any reason
to the plaintiff-husband and since then she
is residing with her parents at Kota,
Rajasthan.

9. The divorce petition filed by the
plaintiff-appellant was contested by the
defendant-wife.
Accordingly,
the
defendant-wife filed a written statement
denying the allegations made in the
divorce petition. The defendant-wife
clearly admitted that at the time of
marriage
the
plaintiff-husband
had
categorically disclosed that his first wife
has expired. He also disclosed that from
the first wife, there are two daughters,
who live with their Mama or Bua. It is
proper for up bringing of the two minor
daughters that the plaintiff is remarrying.
The defendant-wife further stated that
right from 14.11.1994 upto 24.04.2004
when the plaintiff-appellant kept the
defendant-wife, she duly discharged her
obligations as wife and mother of the two
minor daughters. She took every step for
the proper up bringing of the two
daughters and performed daily routine
work with sincerity. The defendant-wife
in discharge of her obligations as the
mother of the two minor daughters even
gave up her parental home and used to
visit her parental home only during the
summer vacations but alongwith the two
minor daughters. She also travelled to
Agra and Bombay alongwith the two
daughters. For ten years, it is the
defendant- wife, who looked after the two
minor daughters and when they have
become major, the plaintiff has turned
dishonest and he as well as his two
daughters have started committing cruelty
upon the defendant-wife. It was also
alleged that whenever the plaintiffappellant went out of Agra in connection
with his business, it was the defendantwife
who
looked
after
them
and
discharged the obligations of not only the
mother but also of the father. The
defendant-wife had never misbehaved
with the plaintiff-appellant or his two
daughters nor even committed any cruelty
upon them. Had it been so then the
plaintiff would have certainly not kept the
defendant with him for ten long years.
The plaintiff would not have placed the
responsibility of the two minor daughters
upon the defendant in case her conduct
was as alleged by the plaintiff. To the
contrary, it is the plaintiff who has
committed cruelty upon the defendant as
she has been used as long as the two
daughters were minors and thereafter, she
has been sought to be abandoned by
ousting her from her matrimonial home. It
was further stated that as long as the
defendant resided with the plaintiff at
888 INDIAN LAW REPORTS ALLAHABAD SERIES
Mumbai or Agra, she satisfied every demand
of the plaintiff and her conduct towards the
plaintiff and his two daughters was both
amicable and cordial. The defendant further
stated that the plaintiff had concealed the
factum of his getting the family planning
operation done and therefore, the charge
alleged against the defendant that the
defendant has filed to discharge marriage
obligations is wholly incorrect. Lastly, it was
stated that the defendant wants to reside with
the plaintiff and for that purpose, she had
instituted proceedings under Section 9 of
Hindu Marriage Act, which had been
decreed vide judement and decree dated
16.03.2011. The defendant is still ready to
reside with the plaintiff.

10. The Court below on the basis of
the pleadings of the parties framed the
following three issues for adjudication:

(I) Whether the conduct of the
defendant-wife towards the plaintiffhusband is cruel or the conduct of the
plaintiff-husband towards the defendantwife is cruel? If yes, its effect.

(II) Whether the plaintiff is entitled
to the decree of divorce?

(III) Whether the plaintiff is entitled
to any other relief? If yes, then what.

11. After the aforesaid issues were
framed, the parties went to trial. The
plaintiff in order to prove his case
adduced himself as P.W.-1, his daughter
Gazal as P.W.-2 and one Raju Prakash
Jain as P.W.-3. The plaintiff further filed
some documentary evidence in support of
his case, the detail of which are
mentioned
in
paragraph
7
of
the
impugned judgement.

12. The defendant-wife in order to
establish her defence adduced herself as
D.W.-1 and one Anil Kumar Jain as
D.W.-2. The defendant-wife also filed
documentary evidence to establish the
document set up by her, the same is
detailed in paragraph 8 of the impugned
judgement.

13. The Court below considered
issue no.1 in the light of the pleadings
raised by the parties and the oral and
documentary evidence adduced by them.
While considering the aforesaid issue, the
Court below framed an ancillary question
as to whether the defendant-wife has been
ousted from her matrimonial home for
sufficient reason or the defendant-wife
has herself left the matrimonial home.
Upon evaluation of the same the Court
below
concluded
that
the
plaintiffhusband has failed to establish cruelty on
the part of the defendant-wife against the
plaintiff and secondly, the defendant-wife
has been ousted from her matrimonial
home without any sufficient reason. As
such the suit for divorce filed by the
plaintiff-appellant was dismissed.

14. Mr. Swapnil Kumar, the learned
counsel for the plaintiff-appellant has
assailed the impugned judgement on the
ground
that
the
Court
below
has
committed a manifest error of law in
deciding the issue no.1 against the
plaintiff. It is the submission of the
learned counsel for the plaintiff-appellant
that the allegations made in the divorce
petition stood proved by the testimony of
D.W.-2, Gazal. As such, the plaintiffappellant is clearly entitled to the decree
of divorce on the ground of cruelty as
prayed for. He thus submits that the
judgement and decree passed by the Court
below are liable to be set aside on the suit
of the plaintiff-appellant for divorce be
decreed throughout.
2 All. Anil Kumar Jain Vs Smt. Kalpana Jain
889

15. Mr. S. K. Purwar, the learned
counsel
for
the
defendant-wife
has
supported the impugned judgement. He
has referred to the facts relating to the
proceedings initiated before the Rajasthan
State Commission for Women and the
decree passed under Section 9 of the
Hindu Marriage Act in favour of the
defendant-wife. It has further been argued
that the marriage of the plaintiff-appellant
was solemnized with the defendant-wife
on 14.11.1994 whereas the suit for
divorce has been filed on 22.07.2004 i.e.
after more than 9 years of marriage. It
was then urged that at the time of
marriage the two daughters of the
plaintiff-appellant namely Gazal Jain and
Geetika Jain, who were born out of the
wedlock from the first wife Smt. Nishi
Jain, were minors and looked after by the
defendant-wife. This is established from
the fact that there is no pleading in the
divorce petition as to who looked after the
minor daughters in case the defendantwife was absent from her matrimonial
home at Agra and the plaintiff-appellant
frequently left Agra in connection with
his business.

16. Thus, the only question which
has cropped up for consideration before
us is whether the plaintiff-appellant was
able to prove the case of cruelty and Court
below has committed any error in
disbelieving the case of appellant or not.

17. Before proceeding to consider
the aforesaid question, it shall be
appropriate to reproduce Section 13 of the
Act of 1955, which provides for the
grounds of divorce.

" 13 Divorce. --(1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the husband
or the wife, be dissolved by a decree of
divorce on the ground that the other party-
-

[(i) has, after the solemnization of
the marriage, had voluntary sexual
intercourse with any person other than his
or her spouse; or

(i-a) has, after the solemnization of
the marriage, treated the petitioner with
cruelty; or

(i-b) has deserted the petitioner for a
continuous period of not less than two
years
immediately
preceding
the
presentation of the petition; or]

(ii) has ceased to be a Hindu by
conversion to another religion; or

[(iii) has been incurably of unsound
mind, or has been suffering continuously
or intermittently from mental disorder of
such a kind and to such an extent that the
petitioner cannot reasonably be expected
to live with the respondent.

Explanation.--In this clause,--

(a) the expression "mental disorder"
means
mental
illness,
arrested
or
incomplete
development
of
mind,
psychopathic disorder or any other
disorder or disability of mind and includes
schizophrenia;

(b) the expression "psychopathic
disorder" means a persistent disorder or
disability of mind (whether or not
including sub-normality of intelligence)
which results in abnormally aggressive or
seriously irresponsible conduct on the part
of the other party, and whether or not it
requires or is susceptible to medical
treatment; or]

(iv) has, [***] been suffering from a
virulent and incurable form of leprosy; or

(v) has, [***] been suffering from
venereal disease in a communicable form;
or
890 INDIAN LAW REPORTS ALLAHABAD SERIES

(vi) has renounced the world by
entering any religious order; or

(vi) has not been heard of as being
alive for a period of seven years or more
by those persons who would naturally
have heard of it, had that party been alive;
[***]

[ Explanation. -In this sub-section,
the expression desertion means the
desertion of the petitioner by the other
party to the marriage without reasonable
cause and without the consent or against
the wish of such party, and includes the
wilful neglect of the petitioner by the
other party to the marriage, and its
grammatical
variations
and
cognate
expressions
shall
be
construed
accordingly.]

(viii) [***]

(ix) [***]

[(1-A) Either party to a marriage,
whether solemnised before or after the
commencement of this Act, may also
present a petition for the dissolution of the
marriage by a decree of divorce on the
ground--

(i) that there has been no resumption
of cohabitation as between the parties to
the marriage for a period of 22 [one year]
or upwards after the passing of a decree
for judicial separation in a proceeding to
which they were parties; or

(ii) that there has been no restitution
of conjugal rights as between the parties
to the marriage for a period of 22 [one
year] or upwards after the passing of a
decree for restitution of conjugal rights in
a proceeding to which they were parties.]

(2) A wife may also present a
petition for the dissolution of her marriage
by a decree of divorce on the ground,---

(i) in the case of any marriage
solemnised before the commencement of
this Act, that the husband had married
again before such commencement or that
any other wife of the husband married
before such commencement was alive at
the time of the solemnisation of the
marriage of the petitioner: Provided that
in either case the other wife is alive at the
time of the presentation of the petition; or

(ii) that the husband has, since the
solemnisation of the marriage, been guilty
of rape, sodomy or [bestiality; or]

[(iii) that in a suit under section 18 of
the Hindu Adoptions and Maintenance
Act, 1956 (78 of 1956), or in a proceeding
under section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) [or under the
corresponding section 488 of the Code of
Criminal Procedure, 1898 (5 of 1898)], a
decree or order, as the case may be, has
been passed against the husband awarding
maintenance to the wife notwithstanding
that she was living apart and that since the
passing
of
such
decree
or
order,
cohabitation between the parties has not
been resumed for one year or upwards; or

[(iv) that her marriage (whether
consummated or not) was solemnised
before she attained the age of fifteen years
and she has repudiated the marriage after
attaining that age but before attaining the
age of eighteen years.]

Explanation.
--This
clause
applies
whether the marriage was solemnised before
or after the commencement of the Marriage
Laws (Amendment) Act, 1976 (68 of 1976).]

STATE AMENDMENT

Uttar Pradesh.-- In its application to
Hindus domiciled in Uttar Pradesh and
also when either party to the marriage was
not at the time of marriage a Hindu
domiciled in Uttar Pradesh, in section 13-
-

(i) in sub-section (1), after clause (i)
insert (and shall be deemed always to
have been inserted) the following
2 All. Anil Kumar Jain Vs Smt. Kalpana Jain
891

"(1-a) has persistently or repeatedly
treated the petitioner with such cruelty as
to cause a reasonable apprehension in the
mind of the petitioner that it will be
harmful or injurious for the petitioner to
live with the other party; or", and

(ii) for clause (viii) (since repealed)
substituted and deem always to have been
so substituted for following.

" (viii) has not resumed cohabitation
after the passing of a decree for judicial
separation against that party and--

(a) a period of two years has elapsed
since the passing of such decree, or

(b) the case is one of exceptional
hardship
to
the
petitioner
or
of
exceptional depravity on the part of other
party; or"."

18. Section 13 (i-a) of the Act of
1955 clearly provides that a decree of
divorce can be granted in case after the
solemnization of marriage, the petitioner
has been treated with cruelty.

19. The term cruelty has been the
subject matter of debate for long. A
Division Bench of this Court in the case
of Smt. Sarita Devi Vs. Sri Ashok Kumar
Singh reported in 2018 (3) AWC 2328
has considered the question of cruelty in
detail in paragraphs 16, 17, 18, 19, 20, 21,
22, 23, 24, 25, 27 and 29:-

"16. In Samar Ghosh vs. Jaya Ghosh
(2007) 4 SCC 511 Court considered the
concept of cruelty and referring to Oxford
Dictionary defines 'cruelty' as 'the quality
of being cruel; disposition of inflicting
suffering; delight in or indifference to
another's
pain;
mercilessness;
hardheartedness'.

17. In Black's Law Dictionary, 8th
Edition, 2004, term "mental cruelty" has
been defined as, "a ground for divorce,
one spouse's course of conduct (not
involving actual violence) that creates
such anguish that it endangers the life,
physical health, or mental health of the
other spouse."

18. The concept of cruelty has been
summarized in Halsbury's Laws of
England, Vol.13, 4th Edition Para 1269,
as under:

"The general rule in all cases of cruelty
is that the entire matrimonial relationship
must be considered, and that rule is of
special value when the cruelty consists not
of violent acts but of injurious reproaches,
complaints, accusations or taunts. In cases
where no violence is averred, it is
undesirable
to
consider
judicial
pronouncements with a view to creating
certain categories of acts or conduct as
having or lacking the nature or quality
which renders them capable or incapable in
all circumstances of amounting to cruelty;
for it is the effect of the conduct rather than
its nature which is of paramount importance
in assessing a complaint of cruelty. Whether
one spouse has been guilty of cruelty to the
other is essentially a question of fact and
previously decided cases have little, if any,
value. The court should bear in mind the
physical and mental condition of the parties
as well as their social status, and should
consider the impact of the personality and
conduct of one spouse on the mind of the
other, weighing all incidents and quarrels
between the spouses from that point of
view; further, the conduct alleged must be
examined in the light of the complainant's
capacity for endurance and the extent to
which that capacity is known to the other
spouse. Malevolent intention is not essential
to cruelty but it is an important element
where it exits."

19. In 24 American Jurisprudence
2d, the term "mental cruelty" has been
defined as under:
892 INDIAN LAW REPORTS ALLAHABAD SERIES

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

20. One of the earliest decision
considering "mental cruelty" we find is,
N.G. Dastane v. S. Dastane (1975) 2 SCC
326, wherein Court has said:

"The enquiry therefore has to be
whether the conduct charges as cruelty is of
such a character as to cause in the mind of
the petitioner a reasonable apprehension
that it will be harmful or injurious for him to
live with the respondent. "

21.

In
Sirajmohmedkhan
Janmohamadkhan
v.
Haizunnisa
Yasinkhan and Anr. (1981) 4 SCC 250
Court said that a concept of legal cruelty
changes according to the changes and
advancement of social concept and
standards of living. With the advancement
of our social conceptions, this feature has
obtained legislative recognition, that a
second marriage is a sufficient ground for
separate
residence
and
maintenance.
Moreover, to establish legal cruelty, it is
not necessary that physical violence
should be used. Continuous ill-treatment,
cessation of marital intercourse, studied
neglect, indifference on the part of the
husband, and an assertion on the part of
the husband that the wife is unchaste are
all factors which lead to mental or legal
cruelty.

22. In Shobha Rani v. Madhukar
Reddi, (1988) 1 SCC 105, Court observed
that word 'cruelty' has not been defined in
Act, 1955 but legislature, making it a
ground
for
divorce
under
Section
13(1)(i)(a) of Act, 1955, has made it clear
that conduct of party in treatment of other
if amounts to cruelty actual, physical or
mental or legal is a just reason for grant of
divorce. Cruelty may be mental or
physical, intentional or unintentional. If it
is physical, it is a question of fact about
degree. If it is mental, the enquiry must
begin as to the nature of cruel treatment
and then as to the impact of such
treatment on the mind of the spouse.
Whether
it
caused
reasonable
apprehension that it would be harmful or
injurious to live with the other, ultimately,
is a matter of inference to be drawn by
taking into account the nature of conduct
and its effect on the complaining spouse.
There may, however, be cases where
conduct complained of itself is bad
enough and per se unlawful or illegal.
Then the impact or injurious effect on the
other spouse need not be enquired into or
considered. In such cases, cruelty will be
established if conduct itself is proved or
admitted. The absence of intention should
not make any difference in the case, if by
ordinary sense in human affairs, the act
complained
of
could
otherwise
be
regarded as cruelty.

23. In V. Bhagat v. D. Bhagat
(Mrs.), (1994) 1 SCC 337 considering the
concept of "mental cruelty" in the context
of Section 13(1)(i)(a) of Act, 1984, Court
said that it can be defined as conduct
which inflicts upon the other party such
mental pain and suffering as would make
it not possible for that party to live with
other. In other words, mental cruelty must
be of such a nature that the parties cannot
2 All. Anil Kumar Jain Vs Smt. Kalpana Jain
893
reasonably be expected to live together.
The situation must be such that the
wronged party cannot reasonably be
asked to put up with such conduct and
continue to live with other party. It is not
necessary to prove that mental cruelty is
such as to cause injury to the health of
other party. While arriving at such
conclusion, regard must be had to the
social status, educational level of parties,
the society they move in, the possibility or
otherwise of the parties ever living
together in case they are already living
apart and all other relevant facts and
circumstances which it is neither possible
nor desirable to set out exhaustively.
What is cruelty in one case may not
amount to cruelty in another case. It is
thus has to be determined in each case
having
regard
to
the
facts
and
circumstances of each case.

24. In Chetan Dass v. Kamla Devi,
(2001) 4 SCC 250, Court observed that
matrimonial matters relates to delicate
human and emotional relationship. It
demands mutual trust, regard, respect,
love and affection with sufficient play for
reasonable adjustments with spouse. The
relationship has to conform to the social
norms as well. There is no scope of
applying the concept of "irretrievably
broken marriage" as a straitjacket formula
for grant of relief of divorce but it has to
be considered in the backdrop of facts and
circumstances of the case concerned.

25. In Savitri Pandey v. Prem
Chandra Panadey, (2002) 2 SCC 73,
Court held that mental cruelty is the
conduct of other spouse which causes
mental suffering or fear to matrimonial
life of other. Cruelty postulates a
treatment of party to marriage with such
conduct
as
to
cause
a
reasonable
apprehension in his or her mind that it
would be harmful or injurious to live with
other
party.
Cruelty
has
to
be
distinguished from ordinary wear and tear
of family life.

27. In Vinita Saxena v. Pankaj
Pandit, (2006) 3 SCC 778 Court held that
complaints and reproaches, sometimes of
ordinary nature, may not be termed as
'cruelty'
but
their
continuance
or
persistence over a period of time may do
so which would depends on the facts of
each case and have to be considered
carefully by the Court concerned.

29. In Samar Ghosh vs. Jaya Ghosh
(supra) Court said that though no uniform
standard can be laid down but there are
some instances which may constitute
mental cruelty and the same are illustrated
as under:

"(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,
894 INDIAN LAW REPORTS ALLAHABAD SERIES
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 behavior 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
behavior 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."

20. With regard to mental cruelty
reference be made to the judgement of the
Apex Court in the case of A. Jaya
Chandra Vs. Aneel Kaur, 2005 (2) SCC
22. The aforesaid judgement has also
been considered by the Division Bench
(supra) and the following has been
observed
in
paragraph-26
of
the
judgement. The same is accordingly
reproduced herein under.

"26. In A. Jayachandra v. Aneel
Kaur, (2005) 2 SCC 22, Court observed
that conduct of spouse, if established, an
inference can legitimately be drawn that
treatment of spouse is such that it causes
an apprehension in the mind of other
spouse, about his or her mental welfare
then this conduct amounts to cruelty.
2 All. Anil Kumar Jain Vs Smt. Kalpana Jain
895
Court observed that when a petition for
divorce on the ground of cruelty is
considered, Court must bear in mind that
the problems before it are those of human
beings and psychological changes in a
spouse's conduct have to be borne in mind
before disposing of petition for divorce.
Before a conduct can be called cruelty, it
must touch a certain pitch of severity.
Mere trivial irritations, quarrels between
spouses, which happen in day-to-day
married life, may also not amount to
cruelty."

21. In K. Srinivas Rao Vs. D.A.
Deepa (2013) 5 SCC 226, while dealing
with the instances of mental cruelty, the
court opined that to the illustrations given
in the case of Samar Ghosh (supra)
certain other illustrations could be added.
We think it seemly to reproduce the
observations:

"Making
unfounded
indecent
defamatory allegations against the spouse or
his or her relatives in the pleadings, filing of
complaints or issuing notices or news items
which may have adverse impact on the
business prospect or the job of the spouse
and filing repeated false complaints and
cases in the court against the spouse would,
in the facts of a case, amount to causing
mental cruelty to the other spouse."

22. With the aid of the meaning of
the term "physical cruelty" and "mental
cruelty" this Court has now to examine as
to whether the plaintiff-appellant was able
to establish the same before the Court
below and the findings recorded by the
Court below are illegal, perverse and
erroneous or not.

23. From the perusal of the
impugned judgement, we find that the
Court below has disbelieved the case set
up by the plaintiff-appellant by assigning
cogent
reasons.
The
Court
below
concluded that the conduct of the
plaintiff-appellant towards the defendantrespondent is inhuman and the defendantrespondent has been ousted from her
matrimonial home deliberately by the
plaintiff-appellant. Therefore, the case set
up in the divorce petition that the
defendant-respondent has herself left her
matrimonial home was disbelieved by the
Court below as the same was found to be
false. In arriving at the aforesaid finding
the Court below relied upon the statement
of the plaintiff-appellant himself given
before the Rajasthan State Commission
for Women on 28.12.2005 that the
plaintiff-appellant shall not keep the
defendant-wife with him. Apart from the
above, the Court below drew an adverse
inference against the plaintiff-appellant
that inspite of the fact that a decree of
restitution of conjugal rights has been
granted in favour of the defendantrespondent on 16.03.2011, yet inspite of
the same the plaintiff-appellant has not
honoured the same. This again goes to
prove that the defendan-wife had not
deserted the plaintiff' (husband) but that
defendant-wife was ousted from her
matrimonial home without any reason.

24. On the issue regarding the
commission of physical and mental
cruelty, the Court below concluded that
the plaintiff-appellant has not given any
specific instance of such act on the part of
the defendant-respondent, which may
constitute physical or mental cruelty. The
plaintiff-appellant has only stated that
physical and mental cruelty was exerted
upon
the
plaintiff-appellant
by
the
defendant-respondent by stating that the
defendant-respondent refused to do house
896 INDIAN LAW REPORTS ALLAHABAD SERIES
hold work and misbehaved with the two
daughters of the plaintiff-appellant born
from the first wife. The Court below
concluded that this by itself does not
amount to commission of cruelty by the
defendant-respondent.
As
such
the
plaintiff-husband failed to established
cruelty on the part of the defendant-wife.

25. With regard to the issue relating
to the failure on the part of the defendantrespondent
in
not
performing
her
marriage obligations, the Court below
concluded that the plaintiff-appellant has
not approached the Court with clean
hands. The various evidences filed by the
plaintiff-appellant himself clearly belies
his case on the aforesaid issue and
therefore, the said issue was decided
against the plaintiff-appellant.

26. The Trial Court also considered
the issue relating to the conduct of the
defendant-respondent towards the two
daughters of the plaintiff-appellant who
were born from the first wife. After
considering the entire pleadings and the
evidence on record, the Court below
concluded that the conduct of the
defendant-respondent
cannot
be
interpreted in such a manner that it has
lead to the commission of physical and
mental cruelty upon the plaintiff-appellant
and his two daughters. To the contrary the
conduct of deponent-respondent right
from the date of her marriage up to the
date of her ouster i.e. 25.05.2004 has been
that of a pious and benevolent mother and
for the welfare of the two daughters she
has taken every step, which a woman of
even ordinary prudence could take.

27. Mr. Swapnil Kumar, the learned
counsel for the plaintiff-appellant has
confined his submission that the issue of
commission of cruelty by the defendantrespondent was fully established and
therefore the judgement and decree
passed by the Court below is liable to be
set aside. According to the learned
counsel for the plaintiff-appellant, the oral
testimony of P.W.-2 Gazal Jain clearly
proves the plaintiff's case.

28. We have accordingly gone
through the testimony of P.W.-2, Gazal
Jain and find that the same is not worthy
of reliance. P.W.-2 is neither a credible
nor a reliable witness. Firstly, her
statement is tutored as is reflected from
the statement in chief itself. She herself
states that the oral testimony is being
given by her as per the advice of the
advocate.
Secondly,
the
deliberate
omissions in her statement regarding the
date of various occurrences referred to in
her statement and also the absence of
material facts which could substantiate
her statement make her statement wholly
doubtful. For the aforesaid reasons, the
Court below disbelieved the testimony of
P.W.-2 Gazal Jain. We do not find any
illegality in the view taken by the Trial
Court to discard the testimony of P.W.-2.

29. Mr. Swapnil Kumar, the learned
counsel for the plaintiff-appellant could not
place before us any such other material on
the basis of which the view taken by the
Court below in not accepting the oral
testimony of P.W.-2 could be faulted with.

30. Accordingly, we hold that the Court
below did not commit any illegality in
disbelieving the testimony of P.W.-2 and
rightly dismiss the suit of the plaintiffappellant for divorce. No other point was
pressed before us.

31. In view of the discussion made
herein above, the appeal fails and is
2 All. Bhavna Sharma Vs Sri Sanjeev Sharma
897
therefore liable to be dismissed. It is
accordingly dismissed with costs.
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(2019)10ILR A 897

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

First Appeal No. 51 of 2012
connected with
First Appeal No. 178 of 2012