M.F.A. No.4729 of 2008

23rd January, 2009

Petitioner Counsel: Sri G. R. MOHAN
Respondent Counsel: Smt. ROHINI,M/s. Samarthana

Cases Cited:
N. G. Dastane (Dr) Vs. S. Dastane, (1975)2 SCC 326 [Para PARA18]
V. Bhagat Vs. D. Bhagat, (1994)1 SCC 337 [Para PARA19]
Savithri Pandey Vs. Prem Chandra Pandey, 2002(3) ALL MR 250 (S.C.)=(2002)2 SCC 73 [Para 20]
Parveen Mehta Vs. Indrajit Mehta, (2002)5 SCC 706 [Para PARA21]
A. Jayachandra Vs. Aneel Kaur, 2005(5) ALL MR 313 (S.C.)=(2005)2 SCC 22 [Para 22]
Vinitha Saxena Vs Pankaj Pandit, (2006)3 SCC 778 [Para PARA23]
Samar Ghosh Vs. Jaya Ghosh, 2007 ALL SCR 881=(2007)4 SCC 511 [Para 24]
Naveen Kohli Vs. Neelu Kohli, 2006(4) ALL MR 190 (S.C.)=(2006)4 SCC 558 [Para 25]

JUDGMENT

-K. L. MANJUNATH, J.:- Though the matter is listed for admission by consent of parties on both sides, the appeal is heard on merits.

2. The appellant is challenging the legality and correctness of the Judgment and Decree passed by the I Addl. Principal Judge, Family Court dated 4.3.2008 in M.C. No.502/2004 wherein the Family Court has dismissed the petition filed by the appellant herein under Section 13 of the Hindu Marriage Act to dissolve the marriage which was solemnized on 24.3.2003.

3. The facts leading to this case are as hereunder :

The parties are Hindus. Their marriage was solemnized at Bangalore on 24.3.2003. Since the appellant was working in U.S.A; immediately after marriage the parties lived together at Fort Wayne in U.S.A. According to the petition averments ever since the marriage, his wife was not co-operating with him in domestic affairs and she was not showing any interest in the day-today activities and that she was not discharging her matrimonial obligations. On the other hand, she was repulsive towards him. She was not showing any interest in co-habitation. She had no response to the questions of the husband and that she used to take shelter under the fact that she has lost her mother and that she is of dominant character lady.

4. The main contention of the petitioner before the Family Court for seeking divorce was that the father of the respondent had informed him and his parents that the respondent was a Science Graduate from Bangalore University and that he and his parents believed that she can continue her further education at U.S.A and that the petitioner also could help her in getting an employment. According to him in spite of demand made by him to show the marks card and degree certificate of the respondent, she did not furnish the same to him. It is also averred that the respondent lacks knowledge of English and the same was realized by the petitioner when she joined him at U.S.A. The petitioner made provision for books, library membership etc., for her to over come her deficiency, but she did not make use of the same. It is also averred that the respondent lacks general knowledge and even that she does not know the basic knowledge in respect of the subjects she had studied. Later on it was learnt that the respondent was not a Graduate and had failed in the Degree examination. On account of complete ignorance and worldly knowledge in current affairs made the petitioner severely disappointed as he had expected the respondent to be a lovable, knowledgeable and intelligent lady and having basic qualification for a meaningful conversation. According to him the aforesaid expectation by him was not an unreasonable expectation. According to him the deficiency of the respondent in communicating with the petitioner and the people also depicts lack and social sophistication in her. When in the midst of a group of people, the respondent used to stay mute, due to her inability to communicate or on account of unawareness of topics of conversation. She is also incapable of participating and conversing in the social, professional and family circle and this has severely embarrassed the petitioner. According to him in spite of these shortcomings of the respondent, the petitioner never pressurized the respondent to improve her knowledge and he dealt with her with all patience by encouraging her. It is also averred that she has taken five attempts to pass a simple written test to obtain learner's driving licence in U.S.A. Even after securing the driving licence she was not familiar with traffic rules and had never shown any initiative in driving. According to him the driving licence is an essential for a person to reside at U.S.A. Further respondent never showed any interest to learn anything from the surroundings. In the month of November, 2003 without intimating or informing him she left U.S.A to Bangalore. After the respondent returned to Bangalore on 16.11.2003. the petitioner caused a legal notice dated 18.12.2003 calling upon the respondent to meet the petitioner's counsel and come to a mutual arrangement to take divorce by way of mutual consent The respondent sent a reply denying the allegations made on 6.3.2004 making certain allegations. On these grounds, the petition was filed by the appellant seeking dissolution of marriage by a decree of divorce.

5. The respondent appeared and filed her statement of objections in detail. She has denied each and every allegation made in the petition. According to her the respondent has not made any false representation with regard to her educational qualification. It is her case that she was very co-operative with the appellant and she was trying to adjust herself to the American way of life. According to her there was no mis-representation with regard to obtaining graduation by her from the Bangalore University. It is her case that the University had given her a Provisional Degree Certificate stating that she had passed her B.Sc examination. When she went to obtain marks card she noticed that she had failed in one of the subjects and thereafter she had applied for re-totaling the same. It is her case that even without waiting for re-totaling results, she had appeared for supplementary examination and passed her B.Sc. According to her a representation was made by her father that she was a graduate was not with any malafide intention, as it is on account of the callousness of the Bangalore University in declaring her results as pass initially that he believed the same and that the petitioner who was aware of these things now wants to make it a big issue by cooking up a story. According to her she had adjusted to the life in U.S.A and she was co-operative in all possible manner to keep the husband very happy. It is also her case that right from her childhood, she was considered to be nice girl and she was very good in music. She has learnt music and that she has completed her graduation. It is also her case that after she returned from U.S.A on 16.11.2003, the parents of the petitioner did not allow her to enter their house and they made her to stay with her father and within a month thereafter she received a notice dated 18.12.2003 wherein the respondent was asked to give consent for mutual divorce. As the respondent was not willing to give divorce, she refused to give her consent and sent a reply in regard to the manner in which she was treated by the appellant and his family members from the date of marriage till the date of reply. She contends that she was willing to live with the appellant as a dutiful wife and requested the court to dismiss the petition.

6. During the pendency of the petition, the respondent had also filed a petition under Section 9 of the Hindu Marriage Act in M.C. No.1761/2004. The said case was contested by the appellant. It is unfortunate that the parties did not request the court to club both the cases together and to render common judgment. The petition filed under Section 9 of the Hindu Marriage Act was tried separately and the petition filed by the appellant seeking divorce was tried separately and the petition filed by the wife under Section 9 of the Hindu Marriage Act was allowed on merits on 25.10.2006 directing the appellant herein to join the wife, against which, the appellant herein had also filed an appeal before this Court in MFA. No.12537/2006 which appeal has been dismissed by this Court on merits by confirming the Judgment and Decree of the Trial Court in allowing the petition filed under Section 9 of the Hindu Marriage Act.

7. Based on the above pleadings the husband was examined as PW.1 and got marked Exs.P-1 to P-3. The respondent/wife was examined as RW.1 and got marked Exs.R-1 to R-22. The trial court formulated the following issues :

"1. Whether the petitioner is entitled for dissolution of marriage by decree of divorce under Section 13(1)(ia) of Hindu Marriage Act ?

2. What order ?"

Issue No.1 was held against the appellant and the petition filed by the appellant for seeking dissolution of marriage is dismissed by the Court on 4.3.2008. Challenging the said Judgment and Decree in dismissing the petition filed for divorce this appeal is filed by the appellant.

8. Considering the nature of the dispute between the parties as there are no serious allegations of whatsoever nature against each other, an attempt was made by us to bring a re-conciliation and save the marriage both in this appeal and so also in the appeal filed by wife challenging the Judgment and Decree of restitution of conjugal rights. Though the respondent is willing to join the husband unconditionally, the appellant/husband is not willing to re-concile with her and he was so adamant and he requested to grant decree of divorce. It has to be observed by us at this stage that the respondent/wife wanted to tender an unconditional apology in whatever manner he requires. She also submitted that she is willing to return the interim maintenance paid by the appellant in full. But none of the requests of the respondent has been considered by the appellant. In this background, we have heard the Learned Counsel for the parties on merits.

9. Learned Counsel for the appellant contends that the trial court failed to consider that the marriage was solemnized between the parties based on the submission made by the respondent's father that she was a graduate at the time of negotiation. Later on it was learnt by the appellant that she was not a graduate and that she had failed in B.Sc degree. Only on the ground that a false statement was made by the father of the respondent, he contends that the appellant is entitled for a decree of divorce, as there is suppression of facts which amounts to mental torture and cruelty. He further contends that the respondent was not co-operative with him and she never tried to live up to the expectation of the husband at U.S.A and she could not adjust to the life in U.S.A. Therefore, on account of incompatibility, he requests the Court to reverse the finding of the Trial Court and grant a decree of divorce.

10. Per contra. Learned Counsel for the respondent submits that none of the grounds urged by the appellant are tenable. According to him no such false promise was made by the respondent with regard to her educational qualification. It is her specific case that at the time of marriage negotiation the Bangalore University had issued a provisional Degree Certificate, according to which she had passed her B.Sc examination. Later on when she went to collect the marks card, it was learnt that she had failed in one subject. It was further contended by the learned counsel for the respondent that after coming to know of the mistake committed by the University, the respondent filed an application for re-totaling and simultaneously she took supplementary examination in which she was successful in completing B.Sc examination. It is also her case that after she returned from U.S.A., she has joined M.B.A course and she has also passed music and has produced several documents to show her educational qualification and that she was capable of adjusting to life at U.S.A. She further contends that during her stay at U.S.A she has also obtained an International Driving Licence which discloses that she was capable of adjusting to the life at U.S.A. Since the appellant was not willing to live with the respondent, he has invented a cock and bull story, therefore, she requests this court to dismiss the appeal.

11. In addition to that she further contends that the grounds urged in the pleadings do not constitute any one of the grounds to dissolve the marriage between the parties under the provisions of Hindu Marriage Act. In other words she contends the averments made in the pleadings do not constitute the ground of cruelty on the basis of which the petition was filed, therefore, the appellant is not entitled to seek divorce. Lastly, she contends that in view of the dismissal of the appeal of the husband in MFA. No.12537/2006, decree of restitution of conjugal rights granted to the wife has become final. The present appeal does not survive for consideration and the same has to be dismissed only on the said ground.

12. Having heard the Counsel for the parties, the only point that arises for our consideration is as to whether the appellant has made out a case for grant of decree of divorce to dissolve the marriage solemnized between the parties on 24.3.2003?

13. In the entire body of the petition, the only allegation made by the husband against the wife is that there was a false statement made by her father in regard to her educational qualification and that she could not adjust to the life at U.S.A on account of her inferiority complex or lack of worldly knowledge. According to us, legal notice got issued before filing the petition is the foundation to any case. We have seen the legal notice issued by the husband on 18.12.2003.

14. By looking into the aforesaid notice, we are unable to make out any ground to grant a decree of divorce. In other words no foundation is laid by the petitioner in the legal notice nor filed a petition under Section 13 of the Hindu Marriage Act. The only demand in the legal notice is calling upon the respondent to give consent to dissolve the marriage by way of mutual consent without assigning any reason. For the first time in the pleadings the aforesaid allegations are made. In this background we have to examine whether the appellant has proved these allegations made by him by letting cogent evidence and whether the allegations made in the petition constitute a ground to grant divorce.

15. The respondent has explained in detail the circumstances under which she failed in B.Sc. These facts are not in dispute and if the Bangalore University has committed a mistake in issuing certificate starting that the respondent has passed her B.Sc and if later she came to know that she had failed in one subject and if she had passed the same in supplementary examination, we cannot hold that it amounts to mis-representation and even if we consider it as an error, we are unable to consider that it amounts to mental torture and cruelty which would be a basis to grant a decree of divorce. The very fact that she had joined M.B.A course after completion of B.Sc and that she had secured International Driving Licence at U.S.A and other certificates produced by her show that she cannot be considered as a lady without any worldly knowledge. If she were to be a lady without any worldly knowledge, she could not have passed B.Sc examination, she could not have joined M.B.A course and she could not have learnt music.

16. The other allegations made in the petition is that she was not co-operative when she was staying with him. Admittedly, parties have stayed in America nearly seven months. She has left U.S.A on 16.11.2003, during this period no such allegations are made by the husband and even he has not addressed a letter to his parents about the conduct of the respondent. When the appellant has failed to prove the allegations made in the petition, we cannot see any ground to grant a decree of divorce. We may have to add at this juncture that if the marriages are to be dissolved on these trivial issues we afraid that no marriage would be saved.

17. As far as the law regarding cruelty as a ground for dissolution of marriage is concerned, in Black's Law Dictionary the term 'mental cruelty' as a ground of divorce has been defined as a course of conduct of a spouse that creates such anguish that it endangers the life, physical health or mental health of the other spouse.

18. The Hon'ble Supreme Court in the case of N. G. Dastane (Dr) Vs. S. Dastane, (1975)2 SCC 326 has observed that enquiry by the Court in a case where cruelty is alleged must be as to whether the conduct charged 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.

19. In the case of V. Bhagat Vs. D. Bhagat, (1994)1 SCC 337, it has been observed that mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. While arriving at such conclusion, regard must be had to the social status, educational level of the 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.

20. In the case of Savithri Pandey Vs. Prem Chandra Pandey, (2002)2 SCC 73 : [2002(3) ALL MR 250 (S.C.)], the Hon'ble Supreme Court observed that cruelty must 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.

21. In the case of Parveen Mehta Vs. Indrajit Mehta, (2002)5 SCC 706, it has been observed that 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.

22. In the case of A. Jayachandra Vs. Aneel Kaur, (2005)2 SCC 22 : [2005(5) ALL MR 313 (S.C.)] it has been observed that in physical cruelty there can be tangible and direct evidence but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents hat are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

23. In the case of Vinitha Saxena Vs Pankaj Pandit, (2006)3 SCC 778, it has been observed that as to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course or such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conductive matrimonial home.

24. In the case Samar Ghosh Vs. Jaya Ghosh, (2007)4 SCC 511 : [2007 ALL SCR 881], the Hon'ble Supreme Court after reviewing the English, American, Canadian and Australian cases held that no uniform standard can ever be laid down for guidance with regard to mental cruelty. But however, has enunciated certain instances being illustrative but not exhaustive of what constitutes mental cruelty wherein it has been held that the married life should be reviewed as a whole and few isolated instance 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. But 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.

25. While referring to an earlier decision in the case of Naveen Kohli Vs. Neelu Kohli, (2006)4 SCC 558 : [2006(4) ALL MR 190 (S.C.)], it has been observed that public interest demands not only that the married status should as far the possible, as long as possible and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

26. Due to subsequent developments, we are of the opinion that the ground alleged by the petitioner for grant of divorce is also not available to him. It is brought to our notice that the appellant has left U.S.A and has lost his job in U.S.A and is now living in Bangalore. The respondent is also settled in Bangalore. If the allegations made by the appellant that the respondent was not adjusting to the life at U.S.A is accepted, since the appellant is not living in U.S.A and since he is living in Bangalore, the ground which was available to him at U.S.A at the time of filing the petition is not available to him now. We can take judicial notice of this fact. Therefore, we are of the opinion that the ground of cruelty alleged in the petition is not proved and we cannot lightly interfere with the findings of the Trial Court.

27. Before parting with the case, we would like to observe that in many cases, the recent trend has been to seek divorce on flimsy grounds. At a young age the marriage between the parties is solemnized, and within few months thereafter the parties start living separately due to flimsy reasons and most of the time they are seeking divorce without there being any strong or reasonable cause. If this tendency is continued, we are afraid it would affect our social system and society, with may result in disastrous consequence. It is high time that parents and elders advise and bring re-conciliation between the parties whenever the husband or wife are trying to seek divorce. We are not Westerners. We have got our own tradition and cultures, the same have to be respected. Similarly it is the duty of the parents to live together at least for the upcoming of their young children. We have also seen in many cases that on account of the dispute between husband and wife, the prospectus of the children are also in dark. It is high time for Indian society to think and retrospect and find solutions to cure this social evil. Our efforts in this particular case to bring re-conciliation has ended in vain. The appellant is an young educated Engineer. When we requested the appellant to give up his ego and to start life afresh, considering that there are no allegations whatsoever nature against the respondents about her character, as the main allegations is only that her father had mis-represented about her educational qualification and that she was not co-operative, he appeared to be adament and insisted on a decree of divorce, which for the aforesaid reasons we are unable to grant. Even now we hope that the appellant would appreciate our concern to save the marriage and would amicably live with the respondent.

28. In the result the appeal is dismissed.

Appeal dismissed.