2006(6) ALL MR 546
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.H. JOSHI, J.

Nitin Bhaurao Tidke Vs. Smt. Sujata W/O. Nitin Tidke

Second Appeal No.249 of 2001

29th August, 2006

Petitioner Counsel: Mr. J. J. CHANDURKAR
Respondent Counsel: Mr. ABHAY SAMBRE

Hindu Marriage Act (1955), S.13(1)(ia) - Cruelty - What amounts to - Mismatch of personalities and friction that may occur on account thereof is not a cruelty.

Mismatch of personalities and friction that may occur on account thereof between the husband and wife is not essentially a cruelty.

Cruelty is not a term which could be fitted into specified yardsticks. Some acts which are just routine or casual could be a grave act of cruelty to others. It would depend upon facts of a given case whether these acts were 'cruel' to the subject person, and such person has to prove as to how he suffered due to said acts which were to him or her acts of mental cruelty. [Para 21,23]

JUDGMENT

JUDGMENT :- Parties were married at Murtizapur on 26th February, 1993.

2. According to the appellant, the respondent started raising quarrels with the appellant and with appellant's mother after 3 to 5 months of normal stay at matrimonial home.

According to the appellant, the wife refused to attend to the day-to-day activities in the house, such as cooking, serving the food etc. The appellant claims that due to this behaviour of the respondent, they were alloted a separate room in the house. The respondent, however, used to remain out of house for the whole day without informing her whereabouts, and used to quarrel on enquiry.

3. After birth of a child, the respondent turned more arrogant and abused the husband-appellant in a filthy language and left the house with her daughter. When the appellant went to fetch her back, he was insulted. Ultimately, she was brought back by relatives.

Even on return, her behaviour remained unchanged. According to appellant, she threatened of criminal action and that the husband and his relatives were put behind the bars. She also got her second pregnancy aborted. She ultimately left the matrimonial house by leaving the child on 31st March, 1996, informing that she had no desire to co-habit and announcing that she was thereby breaking matrimonial ties.

4. All efforts of conciliation failed. She also lodged a complaint with Police for offence under Section 498-A, read with Section 34, Indian Penal Code, on 7th December, 1996.

The said complaint has resulted in acquittal.

5. Present appellant has filed a Hindu Marriage Petition for divorce on the ground of cruelty on 5th July,1997 under Section 13(1)(ia).

6. After the trial, the learned Civil Judge [Senior Division], Akola, allowed the Hindu Marriage Petition No.106 of 1997.

7. Respondent-wife, who was aggrieved by the Judgment of Trial Court, preferred an appeal which was registered, tried and decided as Regular Civil Appeal No.71 of 2000.

8. The learned Third Additional District Judge, who heard and decided the appeal, allowed the same and set aside the Judgment and Decree passed by Civil Judge [Senior Division], Akola, dissolving the marriage, and dismissed the petition.

This order of allowing the appeal filed by the respondent-wife before First Appellate Court, and dismissal of Hindu Marriage Petition of the Appellant is subject-matter of this petition.

9. The Second Appeal has been admitted by this Court, and following Substantial Question of Law has been framed:-

"Whether it is permissible for an appellate Court exercising appellate jurisdiction over a decree passed under Section 13 of the Hindu Marriage Act to set aside that decree merely because the appellate court, merely on re-appreciation of evidence, takes a different view of the evidence."

10. It is seen from record that the efforts for conciliation were made, however, parties have reported failure, and, now, the appeal is taken up for final hearing.

11. Heard learned Advocates for the parties.

12. This Court will have to find out as to how and in what premises the Substantial Question of Law framed in this appeal arises between the parties, and what shall be the result if the question is answered in either way.

13. This Court has to find out from the pleadings what was the exact substratum, which has led the husband to describe a particular conduct of the wife to be cruelty, find out what evidence was led and what weighed with the First Appellate Court due to which the First Appellate Court found on its independent appreciation of evidence that the averments and evidence did not constitute cruelty, and the finding of the Trial Court appeared to the First Appellate Court to be so grossly improper that the First Appellate Court found it proper to reverse the decree, and thereupon, if demonstrated by the appellant, to find out whether the Appellate Court has taken recourse to second opinion of evidence as "just it was available" in terms of the Substantial Question of Law framed by this Court at the time of admission of appeal.

14. It, therefore, becomes necessary to go to the pleadings.

15. The complaint relating to conduct and behavior of the wife-respondent in the Hindu Marriage Petition is seen into various paras which are extracted for convenience as follows:-

"3. .....Firstly for 3-4 months the behaviour of the respondent was normal, and thereafter, she has started raising quarrels not only with the petitioner but also with his mother. ..."

"3. .....After 3-4 months of the marriage, the respondent has started giving insulting treatment to the mother of the petitioner so also to the other members of the family. She had also started refusing to serve the food to the members of the family and the petitioner. She has also refused to cook the meal for the family members and behaviour of the respondent was absolutely cruel over the petitioner and other family members."

(quoted from page 98 of the Appeal Paper-Book).

"4. .....She is leaving the house in the absence of the petitioner without seeking any permission and returning in the evening time without giving her whereabouts. As and when the petitioner has tried to give understanding to the respondent, not to leave the house in such manner, it was her practice to give very insulting replies to the petitioner. She had developed the habit to raise quarrel and leave the place of the petitioner in his absence with luggage and she is used to go to Murtizapur and stay there for week together. ...."

"4. .....One of the sister of the respondent is residing at Amravati and controlling all the affairs of the family and she was acting as a director. At her instance, the respondent started giving abnormal behaviour towards the petitioner and his family members, so much so that, it became very difficult for them to lead the peaceful life. ....."

"4. .....All the while the respondent used to create a scene by raising the quarrel either with the petitioner or with the member of petitioner so also with other family members."

(quoted from pages 99 and 100 of the Appeal Paper-Book).

"5 .....Even the sister of the respondent and her mother-in-law tried to give understanding to the respondent but, the respondent was giving the replies in a very insulting manner. Due to the elder sister of the respondent, the respondent has made the life of the petitioner and other family members miserable. All the while they have to carry tension relating to the attitude of the respondent."

(quoted from page 100 of the Appeal Paper-Book).

"6. .....After two months of birth of the daughter she has raised the quarrel with the petitioner and give him abuses in a very filthy words and in his absence when he was on duty, she left the house without obtaining the permission with luggage and daughter. ....."

"6. .....Thereafter with the mediation of the relatives the respondent came to the place of the petitioner for cohabitation. However, her rude behaviour was continued. Her practice to leave the house, to raise the quarrel was continued, and on making the inquiry she used to raise the quarrel and was making the atmosphere of terror in the house. ....."

(quoted from pages 100 and 101 of the Appeal Paper-Book).

"9. That, on or about 31-3-1996, the respondent again raised the quarrel with the petitioner and given threats to whole family and left the house in the absence of the petitioner by throwing the minor child in the house itself. ...."

(quoted from page 101 of the Appeal Paper-Book).

16. Above quoted allegations have been replied by the wife-respondent herein in her Written Statement where she has denied the allegations. On the other hand, she complained that she was mercilessly beaten, and husband even tried to pour kerosene on her person. She escaped with great effort. She is rendered destitute without any maintenance. According to her, all allegations are false. She claimed that she was ill-treated. She was not provided proper food, clothing, and was often insulted. She always behaved nicely with the in-laws. According to her, entire story pleaded by husband is cooked up.

17. It is pertinent to note that in the oral evidence in the Examination-in-chief, two circumstances have emphatically been narrated, namely:

"(a) when the respondent-wife had gone to Murtizapur, appellant-petitioner went to fetch her back. At that time, appellant was insulted, and threatened that she would see that law, which favours the women,would be put into motion and he would be dealt with, further that she got her second pregnancy aborted against his wishes.

(b) On 26th and 28th November, 1996, his grand mother was in coma. On those days, the wife came and squatted in verandah from 8-00 to 10-00 a.m. On 28th November, 1996, his grand-mother died. On 29th November, 1996, respondent squatted in the verandah for full day. In the evening, some persons from her parents' side came and attempted to break the house. Neighbour, namely Madhvani, tried to intervene when he was told not to interfere, as it was none of his business.

The behaviour of the wife on 13th day, i.e. On 17th December, 1996 of coming to the place with police was not proper and that he was insulted."

Further all that the appellant has stated in his evidence is that after 3-4 months of marriage, his wife used to quarrel with him. Even the Respondent-wife disclosed him that she is not happy with marriage. She always mentally tortured petitioner by threatening that law is in favour of woman and she will send him to jail.

18. The husband has then examined his father Bhaurao as PW-2, and Prakash Tulshiram Kale as PW-3. PW-4 - Dr. Ashok Fokmare is also examined.

From the evidence of remaining three witnesses, it can be seen that none of the witnesses have stated exactly which circumstances or facts resulted in causing agony to the husband.

All the witnesses in their examination state that she [Sujata] used to quarrel with husband and left home, but no one can clearly state reason of her behaviour.

19. It is seen that none of these witnesses have stated exactly which circumstances or facts, i.e. the conduct of respondent-wife has resulted in causing so gross and serious trouble and mental agony to the husband, consequently disturbing normalcy of his life, so as to denote the respondent's conduct as mental cruelty.

20. It is quite likely, rather may be true, that the wife is extremely introvert, or a woman of hyper-sensitive nature. She may be short tempered, or untrained to live in a big family, having background of good stature and etiquettes with which the family of husband is enriched.

21. It is seen from averments contained in initial four paragraphs of Hindu Marriage Petition where the husband has tried to narrate the background of his family which refers to highly educational status and well-placed position of members of his family and those related to him. It is quite likely that the cultural discord between the family and upbringing of respondent-wife did not match with the status and standard, social, cultural etc. of the husband. Mismatch of personalities and friction that may occur on account thereof between the husband and wife is not essentially a cruelty.

22. As far as factum of mental cruelty by wife to husband in the present case is concerned, the appellant got himself delimited as to these matters within the bounds of his pleadings in the petition. This Court has in detail referred to the averments. Crucial averments have been quoted in extenso in this Judgment. The appellant had opportunity to amplify within legal bounds about all that he could embroider.

What emerges from evidence led by the husband and his witnesses is that he even did not try to prove as to how whatever is pleaded by him operates to him as mental cruelty. Nothing has come on record which could be read as a proof of the fact that he suffered mental agony and trouble to such extent that it could no more be endured and tolerated to enable continued co-habitation notwithstanding said acts of mental cruelty.

23. It is well settled that cruelty is not a term which could be fitted into specified yardsticks. Some acts which are just routine or casual could be a grave act of cruelty to others. It would depend upon facts of a given case whether these acts were 'cruel' to the subject person, and such person has to prove as to how he suffered due to said acts which were to him or her acts of mental cruelty.

24. Evidence received in the present case falls too scant to cloth the acts complained against wife with the garment of cruelty.

25. This Court finds that in view of the question formulated at the time of admission, it has become necessary to test as to whether just because it was available that the Appellate Court has taken a different view of the matter.

26. It will be discourteous to say that the Appellate Court has taken a different view of the matter just because it was available. The Appellate Court has applied mind fully, and given reasons as to why he does not agree. The reasoning recorded by the Appellate Court as to why the conduct, in question, does not amount to, or fit into idea or concept of cruelty is plausible, and cannot be faulted. The same, therefore, does not warrant interference.

27. In the result, this Court finds that the Appeal has no merit.

28. The Substantial Question of Law framed at the time of admission is answered against the appellant. Appeal is dismissed with costs.

Appeal dismissed.