Family Court Appeal No. 74 of 2013,Petition No. A-419 of 2011

3rd March, 2014

Petitioner Counsel: Mr. PANKAJ SHINDE
Respondent Counsel: Mr. HEMANT GHADIGAONKAR

Cases Cited:
Kalest Sky Vs. Kalest Sky, 1950 (2) All ER 398 [Para 6]
Gurbux Singh Vs. Harminder Kaur, 2010 ALL SCR 2665 [Para 7]
Suman Kapur Vs. Sudhir Kapur, 2008(6) ALL MR 937 (S.C.)=2009 (3) Mh.L.J. (SC) 153 [Para 9]
Naveen Kohli Vs. Neelu Kohli, 2006(4) ALL MR 190 (S.C.)=2006(4) Mh.L.J. (SC) 242 [Para 10]
Shobha Rani Vs. Madhukar Reddi, (1998) SCC 105 [Para 16]

JUDGMENT

SMT. V. K. TAHILRAMANI, J. :- Heard the learned counsel for the appellant and the learned counsel for the respondent. By consent of the parties, the appeal is taken up for final hearing and disposal.

2. The marriage of the appellant and the respondent was solemnized on 8.12.2009 at Mumbai as per Hindu Vedic Rites. It is the case of the respondent that the appellant who was his wife, treated him with cruelty, hence, the respondent filed a petition i.e. Petition No. A-419 of 2011 for divorce on the ground of cruelty. The said petition came to be allowed by the Family Court, Mumbai by judgment and order dated 19.12.2012. Being aggrieved by the said order, this appeal has been preferred.

3. It is an admitted fact that the marriage between the appellant and the respondent took place on 8.12.2009 at Mumbai as per the Hindu Vedic Rites. The case of the appellant is that the respondent was the daughter of his maternal uncle. There was love affair between both of them and they had even shared physical intimacy prior to the marriage.

4. In order to show that the wife treated him with cruelty, the respondent-husband relied on the following instances:

(i) After the marriage both the appellant and the respondent went to Mahabaleshwar for honeymoon for four days and three nights. According to the husband, he made attempts to consummate the marriage but the wife refused to allow him to touch her body. Hence, on coming back from honeymoon, he complained to the father of the wife about this fact.

(ii) The second incident relied upon by the husband is that on 24th, 25th and 26th January, 2010 the wife went to Nashik for office work in spite of being advised not to do so as they were newly married. But the wife went out of Mumbai on her office work. The further case of the husband is that the wife used to wear shirt and pant while going to the office which was not liked by him. She used to pick up quarrels with him and his parents and she never gave respect to his parents.

(iii) Another incident relied upon by the husband to show that he was treated cruelly by the wife, is that on 2.2.2010 his wife returned home from office at 10.00 p.m. The respondent tried to convince the wife to behave in a proper and dutiful manner. Thereupon, she picked up quarrel and pushed the husband and started to collect her clothes and belongings in order to go to her parents house. At that time, the husband and his parents convinced her and she stayed the night. On the next day, the husband and his parents called her parents and her parents convinced her. Thereafter on 8.2.2010 the wife of her own accord, left the matrimonial home along with her parents. This is sum and substance of the allegations of the husband on the point of cruelty.

5. In order to prove the cruelty, the husband has examined himself and the wife has also examined herself. No other witnesses were examined by the parties.

6. The learned counsel for the appellant pointed out that the allegations made by the husband regarding picking up of quarrels and not giving respect to his parents, are found to be vague and no material particulars have been given by the respondent in relation to these allegations. The main ground to prove cruelty which has been stated by the husband, is that soon after marriage when they went for honeymoon to Mahabaleshwar for four days and three nights, he made attempts to consummate the marriage but the wife refused to allow him to touch her. According to the husband, this non-consummation of marriage at the time of honeymoon caused him tremendous cruelty. It was submitted by the learned counsel for the husband that failure to comply with one of the essential obligations of the marital life by a spouse, would amount to subjecting the other to cruelty. It is one of the essential and principal obligations on the part of the spouse to satisfy the sexual urge of the other, which is natural instinct. Married life without a sexual life will be a curse. Normal sexual life cannot be deserted from a happy marital life. It was observed by Lord Denning in Kalest Sky Vs. Kalest Sky, 1950 (2) All ER 398: "that willful and unjustifiable refusal of sexual intercourse is destructive of marriage, more destructive, perhaps, than anything else. Just as normal sexual intercourse is the normal bond of marriage, so the willful refusal of it causes a marriage to disintegrate. It gives rise to irritability and discord, to nervousness and manifestations of temper, and hence, to the break down of marriage.

7. The learned counsel for the husband contended that refusal to have sexual intercourse clearly amounts to cruelty. He placed reliance upon the decision of the Supreme Court in the case of Gurbux Singh Vs. Harminder Kaur; 2010 ALL SCR 2665 to support his contention. He pointed out that in paragraph 10 of the judgment, it is held that "unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason, may amount to mental cruelty".

8. The learned counsel for the appellant submitted that the evidence of the wife clearly shows that at that time her menstrual period was going on and it is because of this that she refused to allow the husband to consummate the marriage. The learned counsel for the appellant has also pointed out that except for the period of four days that they had gone to Mahabaleshwar, there is no allegation made by the husband that the wife thereafter also continued to refuse to have sexual intercourse. On going through the evidence, we find this is so. Thus, just on the basis of the evidence of the respondent that during 3 to 4 days that they were in Mahabaleshwar the wife did not allow him to have sexual intercourse, cannot be said to be such as to cause mental or physical cruelty to the husband. It is also to be noted that the wife has given a valid explanation for refusal to have sexual intercourse during this period i.e. her menstrual cycle was going on.

9. In the case of Suman Kapur Vs. Sudhir Kapur; 2009 (3) Mh.L.J. (SC) 153 : [2008(6) ALL MR 937 (S.C.)], the Supreme Court, after considering several judgments has observed that "if it is mental cruelty, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other spouse. Whether it caused reasonable apprehension that it will be harmful or injurious for him to live with the respondent ultimately is a matter of inference to be drawn by taking into account the nature of conduct and its effect on the complaining spouse. Whether one spouse has been guilty of cruelty to other is essentially a question of fact and previously decided cases have little, if any, value. The Court is expected to 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."

10. The Supreme Court in the case of Naveen Kohli Vs. Neelu Kohli; 2006(4) Mh.L.J. (SC) 242 : [2006(4) ALL MR 190 (S.C.)] while dealing with an appeal arising from a matrimonial petition filed by the husband seeking a decree of divorce on the ground of cruelty, has observed that "the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage, Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it." In the present case, none of the incidents of the alleged conduct of the respondent could be termed as intolerable.

11. Besides the allegations that the wife refused to have sexual intercourse during 3 to 4 days period during which they had gone to Mahabaleshwar for honeymoon, husband has relied on his evidence that the wife used to pick up quarrel with him and his parents and she never gave respect to his parents. As far as these allegations are concerned, no material particulars have been stated by the respondent and only vague and general allegations have been made by him. These, in our opinion, are not sufficient to prove that the wife treated him with cruelty.

12. The husband has tried to contend that on 24th, 25th and 26th January, 2010 his wife went to Nashik for office work despite the fact that he had advised her not to to do so as they were newly married. The marriage had taken place on 8.12.2009. This means that after 1½ month of the marriage, the wife had gone to Nashik for office work. It is an admitted fact that the wife was working and in such case, if it was necessary for her to go on office work, no fault can be found with her for going to Nashik. Hence, going to Nashik on office work cannot be termed as an act of cruelty.

13. Even if it is assumed that all the aforementioned incidents did occur in the manner as stated by the respondent, still in our opinion, the conduct of the appellant was not of such a character and gravity so as to give rise to a reasonable apprehension in the mind of the respondent that it will be harmful or injurious for him to live with her or it would be impossible for them to live together without mental agony or torture. In the other words, the respondent's conduct was not such that no reasonable person would tolerate it. Parties to the marriage, tying nuptial knot, are supposed to bring about the union of two souls. It creates a new relationship of love, affection, care and concern between the husband and wife and that it brings two families together. Such ties cannot be allowed to be severed on the grounds/incidents/conduct which are ordinary wear and tear of matrimonial life. None of the aforementioned incidents or conduct of the wife, in our opinion, could be termed as "grave and weighty" to be treated as the cause for cruelty. It is true that the word "cruelty" is not defined and, therefore, it is not possible to say as to when the conduct of other spouse constitutes cruelty, however, the door of cruelty cannot be opened so wide otherwise divorce will have to be granted in every case of incompatibility of temperament. That was not the intention of Legislature when the ground of cruelty was made available for seeking a decree of divorce.

14. Thereafter, the case of the respondent is that the appellant used to wear shirt and pant while going to office which was not liked by him. The appellant and the respondent are both educated persons. Both are working. It is not his case that she used to wear shirt and pant every day while going to office. Looking to the strata of the society from which they are coming, assuming that the wife used to wear shirt and pant while going to office on few occasions, it would not be such conduct on the part of the wife as to grant divorce on the ground of cruelty.

15. The last incident on which reliance has been placed by the husband is that the wife treated him with cruelty on 2.2.2010 when she returned home from office at 10.00 p.m. The respondent tried to convince the wife to behave in a proper and dutiful manner. Thereupon, she picked up quarrel and pushed the husband and started to collect her clothes and belongings in order to go to her parents house. As far as this incident is concerned, it is noticed that the husband and his parents convinced her and she did not leave the house that night. On the next day, the husband and his parents called her parents and they convinced her and she was convinced.

16. In the case of Shobha Rani Vs. Madhukar Reddi; (1998) SCC 105, the Supreme Court had an occasion to examine the concept of cruelty. In this case, the Supreme Court has interpreted the word "cruelty". The "cruelty" which has not been defined in the Act, though it has been specifically used in Section 13(1)(ia) of the Act, the Supreme Court observed that "the cruelty is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the 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 the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such case, the cruelty will be established if the 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. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment."

17. The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be preceded for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Only sustained unjustified and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty. There is no evidence to that effect in the present case.

18. We have already verified all the allegations made in the petition, written statement as well as the evidence of both the parties. On going through the same, we are satisfied that on the basis of such instances, the marriage cannot be dissolved. In this view of the matter, the appeal is allowed. The judgment and order dated 19.12.2012 passed by the Family Court No.2, Mumbai in Petition No. A-419 of 2011 thereby dissolving the marriage between the parties, by a decree of divorce, is set aside.

19. No order as to costs.

20. Decree be drawn up accordingly.

Appeal allowed.