RAMCHANDER vs. ANANTA

1 REPORTABLE

CIVIL APPEAL NO 3483 of 2011 Ramchander …Appellant Vs. Ananta ...Respondent J U D G M E N T C. NAGAPPAN, J. JUDGMENT 1. The appellant-husband in this civil appeal has assailed the judgment dated 24.11.2008 passed by the High Court of Calcutta Circuit Bench at Port Blair in F.A. No.003 of 2008, wherein the Division Bench of the High Court set aside the decree of divorce dated 14.7.2008 granted by the District Page 1 2 Judge, A & N Islands, to the appellant herein, in Matrimonial Suit No.27 of 2005.

in brief which give rise to the appeal herein are as follows: The appellant-husband is an engineer and the respondent-wife is a draftsman, both working in the office of Andaman Public Works Department and nd their marriage took place on 2 March 1994 and a son was born in the wedlock on 24.1.1996. It is an admitted fact that the respondent-wife had filed a complaint under Section 498-A IPC against the JUDGMENT husband and it was subsequently withdrawn by her. It is also admitted fact that during their cohabitation the couple had changed their residence thrice. In 1997, the respondent-wife left the matrimonial home and started to live with her parents and upon legal notice sent by her husband she returned back to the matrimonial home. Then again in March Page 2 3 2003, the wife left the matrimonial home to live with her parents and has not come back since.

divorce on the ground of cruelty and desertion under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955. He has alleged that immediately after marriage the relationship between the spouses was not cordial and the wife did not want to live with husband’s family and wanted to live separately. She insulted and abused the husband calling him ‘dhobi’ and the minor child JUDGMENT as ‘dhobi’s son’ and because of her rude behaviour with landlord and neighbours they had to change the residence thrice. The wife refused to perform any household work and did not take proper care of their minor child and the husband had to bring food from outside and ultimately in the month of March 2003, she left the matrimonial home and did not Page 3 4 return, leading to the filing of the divorce petition by the husband.

filing her written statement alleging that since her father was working as ‘chowkidar’, her husband’s family was ill-disposed towards her and they used to taunt her for not bringing enough dowry. She has specifically denied the allegations in the plaint and asserted that she had never behaved improperly and she took good care of her child. She also leveled an allegation of extra marital affair against JUDGMENT her husband with a woman who was working under him. According to her whenever she confronted him in this respect the husband would shout and abuse her. 5. The appellant-husband besides examining himself as PW1, examined the minor child as PW2 Page 4 5 and the servant as PW3 on his side. The respondent-wife examined herself and her mother

examined three persons working in municipal council as DWs 2 to 4 on her side. 6. The trial court on a consideration of oral and documentary evidence held that the plaintiff- husband proved the ground of cruelty and desertion and granted the decree of divorce as prayed for. Challenging the same the defendant-wife preferred the appeal and the High Court on an elaborate JUDGMENT consideration held that the trial court was not justified in decreeing the suit by dissolving the marriage between the spouses and allowed the appeal. Aggrieved by the same the husband has preferred the present appeal. Page 5 6 7. The learned counsel for the appellant- husband submitted that the High Court failed to

mental cruelty as pleaded and proved but considered every instance separately and held that each by itself would not entitle the husband to a decree for divorce and said approach is erroneous and contrary to law. It is his further submission that the High Court erred in not placing reliance on the child’s testimony and fell into a grave error in reversing the well considered judgment of the trial court. It is also submitted that mental cruelty was JUDGMENT clearly established and in any event the marriage has broken down irretrievably and on that score alone the decree for divorce should have been passed. In support of the submissions the learned counsel relied on the following decisions : (1) Parveen Mehta Vs. Inderjit Mehta (2002) 5 SCC Page 6 7 706; (2) A. Jayachandra Vs. Aneel Kaur (2005) 2 SCC 22); (3) Samar Ghosh Vs. Jaya Ghosh

Deepa (2013) 5 SCC 226). 8. The learned counsel for the respondent-wife contended that the High Court examined the instances of mental cruelty pleaded in this case on the parameters laid down by this Court in the decision in Samar Ghosh case (Supra), and concluded that the ground of mental cruelty has not been established by the plaintiff-husband. It is JUDGMENT further submitted that the wife was compelled to live separately on account of the conduct of the husband. The further submission was that the impugned judgment does not suffer from any legal infirmity warranting interference. Page 7 8 9. The appellant-husband and the respondent- wife are educated and working in the office of the

married on 2.3.1994 and son was born to them on 24.1.1996. The appellant-husband filed the suit on 18.7.2005 seeking for divorce on the grounds of cruelty and desertion. 10. The expression ‘cruelty’ has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes a JUDGMENT reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from Page 8 9 the facts and circumstances of the case. It is settled law that the instances of cruelty are not to

effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of ‘mental cruelty’ can be drawn and they are only illustrative and not exhaustive. JUDGMENT 11. The plaintiff-husband alleged that after their marriage the defendant-wife did not like to live in the joint family and that led to shifting to separate residence and even there due to quarrels, the wife had with the respective landlords and neighbours, there was frequent shifting of residence. According to the defendant-wife the shifting was necessitated Page 9 10 once because the husband desired so and on two other occasions due to increase in rent demanded

water to the rented premises. Neither the family members of the plaintiff nor the landlords and neighbours of the tenanted premises were examined, and as rightly held by the courts below, there is no evidence adduced by the plaintiff to substantiate this allegation. 12. The next instance alleged by the plaintiff- husband is that the defendant-wife used to abuse JUDGMENT him as ‘Dhobi’ and the son as ‘Dhobi’s son’ and such utterances had adverse effect on them. PW1, plaintiff and PW2, the son have stated so in their testimonies. Of course the defendant-wife has specifically denied the said allegation. PW2, the child, when examined in September, 2007 in the th court was 11 years old and was studying in 6 class. Page 10 11 On the date of alleged desertion in 2003 he was only about 7 years old. Prior to 2003 he was an

his early life. Even if the version of the child that the mother used to call him Dhobi’s son is accepted, such scolding is the common reaction to discipline him and it denotes lack of culture on the part of the mother. 13. It is further alleged that the defendant-wife was reluctant to do any household work and was not cooking food for the plaintiff and the child which JUDGMENT necessitated the bringing of food from outside, amounting to mental cruelty. Being working mother, she could not spare enough time to be with the child resulting in the feeling of not being cared for. In this context it is relevant to point out that the child was residing with his father since alleged separation in 2003. The expression of the child is Page 11 12 due to attitudinal problem and it can be addressed to. The trial court placed much reliance on the

as misplaced. The learned counsel for the appellant found fault with the High Court in not placing reliance on the child testimony. We are not able to appreciate this contention. In the facts of the case we are of the considered view that the High Court has rightly done so. 14. The next instance is the allegation made by the wife in the case filed by her under Section 498-A JUDGMENT of IPC against the husband. Admittedly the case was withdrawn by the wife and she continued to live with the husband. In fact the High Court has observed in the impugned judgment that though the date of filing of the criminal complaint is not mentioned in the plaint, from the sequence of narration of events therein it appears to have been Page 12 13 filed prior to the birth of the child. The aberration on the part of the wife has been condoned by the

continued to live together till the date of alleged separation in 2003. 15. The last instance of cruelty alleged by the husband is the allegation made by the wife that he has been involved in an extra marital affair with the daily rated mazdoor lady working under him. It is true that the defendant-wife has named the said lady with whom her husband allegedly was having JUDGMENT an affair. The plaintiff-husband though admitted that the said lady was working under him, has specifically denied the said allegation. The courts below have concurrently found that the wife has not substantiated the said allegation. Mere failure to prove such allegation would not entitle the husband to a decree of divorce as rightly held by the High Page 13 14 Court. The conduct of the wife that had been complained of appears to be not so grave and

than ordinary wear and tear of married life. 16. What remains to be considered is the ground of desertion alleged by the plaintiff-husband, it is averred that the defendant-wife left the company of the plaintiff in March, 2003 and date is not mentioned. The child was only 7 years old in 2003 and his testimony in this regard will not advance the case of the plaintiff. DWs 2 to 4 have testified JUDGMENT that they had seen the plaintiff and the defendant together as spouses even during 2005. It is pointed out that there is no denial against such contention in cross examination. It is relevant to point out that DW2 is working in Marine Department and DW3 and DW4 are working in the Municipal Council and there is no reason for them to falsely depose against the Page 14 15 plaintiff. The trial court has not indicated with any clarity in its judgment as to how the testimonies of

The High Court on going through their testimonies has concluded that it does not find their evidence unworthy of credence. We are in agreement with the said view expressed by the High Court. Resultantly the ground of desertion alleged is also not established. 17. We also find no merit in the contention of the learned counsel for the appellant that the marriage JUDGMENT between the plaintiff and defendant has irretrievably broken down. 18. In the result there is no merit in the appeal and the same is dismissed. No costs ……………..………………………….J. (Vikramajit Sen) Page 15 16

New Delhi; February 24, 2015 JUDGMENT Page 16