Rahul Kesarwani v. Sunita Bhuyan

(ix) That the Family Court erred in law and on facts, by finding that prior medical condition of the Appellant entitled the Respondent to a divorce.

(x) That the Family Court had not given any reasoning as to whywithout any documentary evidence being proved on record, or with any third party affirmation the respondent had successfully proved her case.

7. We have heard Learned Counsel for the Appellant and have gone through the impugned judgment and the documents placed on record before us.

8. The Appellant has stated that the Respondent was not a reliable witness and the Family Court erred in relying upon her statements. However, we do not agree with this submission of the Appellant, as not only had the Respondent substantiated and supported her claims by way of her Evidence Affidavit and Written Submissions, besides being cross examined before the Family Court. The Family Court has considered the said aspect in the impugned judgment as follows:

9. Further, the grievance of the Appellant as to why the Family Court adjudicated on the ground of unsound mind, when the same was not pressed by the Respondent is again irrelevant for us. The divorce petition was filed under two grounds i.e. Section 13(1)(ia) and Section 13(iii) of the Hindu Marriage Act, 1955. The Family Court had to deal with both the grounds in the impugned judgment, as neither of these grounds were withdrawn by the Respondent-wife. However, the same has no bearing on the matter, as the Respondent – wife failed to prove the necessary ingredients of Section 13(1)(iii) before the Family Court and the divorce was granted on the sole ground of „cruelty‟. It was made clear by the Family Court that there was no finding related to the unsoundness of mind of the Appellant, and that issue was decided in favour of the Appellant. The Family Court in paragraph 47 held:

setting aside of the judgment, on this ground.

10. The Appellant has claimed in his appeal that the Respondent admitted herself that there is nothing on record to prove that he or his family demanded money, or any form of dowry from her, and the FIR registered by her in that respect has been closed. Yet, at the same time he has also admitted in his cross examination the fact that his mother had asked for dowry. The Family Court Judge noted in the judgment that:

11. The Appellant has stated that there are several inconsistencies and contradictions in the judgment passed by the Learned Family Court. It was argued by the Appellant that in the judgment, the Family Court first observed that the parties did not have conjugal relations since the first day of marriage, but later stated that it was not the case of the Respondent that they did not have physical intimacy. This submission is meritless. Paragraph 36 of the impugned judgment states that it is the case of the petitioner before it that there was no healthy physical relationship. The Family Court had simply noticed the case of the Respondent-wife and, rather, had made no independent observation with regard to the consummation of their marriage.

12. Further, the Appellant has claimed that the Family Court took into account three incidences which were not even pleaded by the Respondent. The factum that the incidents of 10.07.2011, 21.10.2011 and 26.12.2011 were not pleaded by the Respondent-wife in her petition, but disclosed only in the Evidence Affidavithas duly been appreciated by the Family Court in paragraph 40 of the Impugned Judgment. The Family Court however, has not relied on any of these incidents to come to the conclusion of the Respondent- wife being subjected to cruelty– and, hence, the Appellant cannot have any reason to challenge the judgment on this ground.

13. The Family Court also held that the Appellant suspecting the Respondent‟s character and making allegations of infidelity and illicit relationships amounted to cruelty. The Appellant denied making any such allegations or statements. However, the Family Court in the Impugned judgment has found the same in favour of the Respondent wife.

14. On this aspect, we are of the view that the grievance of the Appellant is justified. Apart from the self-serving statement of the Respondent, which was denied by the Appellant, and her controverted testimony, she did not lead any other independent evidence on this aspect.

15. We may, however, observe that even if this allegation is taken as not established against the Appellant, there were other matrimonial misconducts which were clearly established against him, which were sufficient to establish the ground of cruelty under Section 13(1)(ia) against him.

16. The Appellant contends that the Family Court observed that a prior medical condition of his would entitle the Respondent-wife to a decree of divorce. However, that is not the position on record. The above disorder of the Appellant has only been referred to in passing and has not been made basis for granting divorce to the Respondent. In Paragraph 51 of the Impugned Order the Family Court noted the opposite andobserved: “It is true that mental disorder in itself is not a ground for divorce and it is necessary for the party to show that the other spouse has been suffering continuously and intermittently from mental disorder and this mental disorder should be of such a kind and to such an extent that he cannot be reasonably be expected to live with her and that the petitioner has failed to prove that the respondent has been suffering from mental disorder to that extent but it is not in dispute that he suffered from "PSYCHOMOTOR ACTIVITY, BIPOLAR DISORDER AND PERSONALLITY DISORDER/MULTIPLE TRAIT' and for which he was treated in Hope Foundation. It was a material information, which he had concealed from the respondent before the marriage.” As per the Appellant‟s own admission in his Evidence Affidavit, he did seek medical assistance in a Rehabilitation Centre called Hope Foundation and was treated for irritability and depression. A perusal of the discharge summary of the Appellant from Hope Foundation shows that the Appellant was treated for Bipolar Affective Disorder and was admitted twice between 24th October - 8th November 2008. The summary states that he suffered from extreme agitation, irritability and violent behaviour. However, that disorder has not been made the basis for coming to the finding of cruelty, and thus needs no further adjudication.

17. The last aspect argued by the appellant is that the Family Courtwithout any documentary evidence or third party affirmation, has granted divorce to the Respondent-wife.

18. We do not agree with this submission of the appellant. The numerous complaints and specific incidents of cruelty – both mental and physical, show the true conduct of the Appellant, which cannot be expected in any healthy matrimonial relationship. Therefore the submission of the Appellant that no instance of cruelty has been established does not impress us. This Court in MAT APP (F.C) 5/2020 titled „Laxmi v. Kanhaiya Lal’ has stated: “When the marriage sours, the vows that the couple takes at the time of marriage are a casualty. We take it that neither of the parties to a marriage enters into the matrimonial bond, only to break it later. If the said bond breaches, there are bound to be some underlying reasons for the same. In some cases, those reasons may come to the surface and the court may be able to see them. In others, they may remain latent for myriad reasons. Those reasons would, invariably, be attributable to both the parties, as it takes two to fight. And when the fight goes to the point of them filing cases against each other, the situation becomes messy and bitter for both of them. Unless the situation is diffused early and the parties decide to reconcile and call a truce, with passage of time, the void between them only increases, and the feeling of love and warmth in their relationship begins to fade. What is left is only a feeling of hurt, hatred, disrespect, disregard and bitterness for the other. These negative feelings and thoughts are bound to give rise to mental trauma, harassment and cause immense cruelty to one - if not both the parties. It is well known and medically established that constant feeling of sorrow, hatred, stress, pain, hurt - and the like, do also manifest in the form of serious diseases such as heart diseases, diabetes, cancer, etc. [The same has been a point of study in an article by Timothy W. Smith and Brian R. W. Baucom, wherein it was stated that quality of intimate relationships matter as “strain and disruption are associated with increased risk” (of coronary heart disease)]1. In our view, there is no reason, not to recognize this as cruelty, entitling the court to pass a decree of divorce on the ground of cruelty. In today’s day and age, with education, knowledge and awareness, the capacity of both-men and women, to adjust, Timothy W. Smith and Brian R. W. Baucom, “Intimate Relationships, Individual Adjustment, and Coronary Heart Disease: Implications of Overlapping Associations in Psychosocial Risk” [2017] 72 (6) American Psychologist (American Psychological Association) 578. accommodate, tolerate has gone down. Materialism has increased. The capacity to forget and forgive and move on is less. Stresses of life have increased with increased competition and faster pace of life. These factors are leading to matrimonial breakdowns. The conduct of the parties to a marriage cannot be described in black and white. There is a lot of grey, and it is not always possible to pin-pointedly say that one spouse is the villain, while the other is the victim. Both may be villains and victims at the same time. In such situations, the mere continuation of the relationship between the warring spouses causes immense emotional and psychological trauma to the parties which would, in itself, tantamount to cruelty by both parties, upon the other.” The ratio of the above judgment is squarely applicable to the facts of this case and relying on the same, we cannot believe the ipse dixit of the Appellant.

19. The Appellant has argued that for setting aside the judgment:a) There must be non-appreciation of evidence to a such material degree which changes outcome of the verdict; or b) Some evidence must have been misread, mis appreciated, or misconstrued in such a way, which if read in proper perspective changes the entire verdict; or c) Some material evidence has totally been omitted to have been read. It is argued that the Appellant has been able to meet the above tests. If the contradictions and misappreciations are of a minor nature, or do not change the essence of the case of the concerned party, the minor aberrations are to be ignored by Appellate Court. To justify interference, there must be such substantial inconsistencies and contradictions of material facts that, if seen in the proper perspective, they would change the entire essence of the judgement. Inconsistencies of such a minor nature neither change the thread, nor the essence of the judgment. The contradictions pointed out by the Appellant are not so serious as to change the finding, persuading us to set aside the impugned judgment, nor are they so grave that they violate the principles of natural justice.

20. We may now notice the findings of the Family Court in the Impugned Judgment:

21. The above findings are founded upon the pleadings in the petition made by the Respondent, proved by way of the Evidence Affidavit, and sustained in the extensive Cross Examination of the Appellant..

22. The term cruelty as envisaged in the Hindu Marriage Act,1955 is not and cannot be exhaustively defined. However, the same can be inferred from a long line of judicial decisions.

23. In the case of Samar Ghosh v Jaya Ghosh, (2007) 4 SCC 511 it was held: “On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.”

24. In N.G Dastane v. S. Dastane, (1975) 2 SCC 326 it was observed as: "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."

25. It has also been observed by the Supreme Court and other Courts that no straitjacket formula can be applied to cases of cruelty in matrimonial dispute. In Samar Ghosh (supra) it was observed that there can be no fixed parameter in determining cruelty. In most of the cases, cruelty is inflicted by one party and felt by another in a variety of circumstances. What may constitute cruelty in one matter may not constitute cruelty in another. Each case and relationship must be viewed separately and its own totality.

26. The matrimonial disputes between a husband and a wife cannot be expected to, and are incapable of following strict parameters of evidence. In cases where there are allegations of cruelty – specially mental cruelty such as Dowry Demand, violent abusive behaviour, starving the spouse of affection, resources and emotional support, there can be no set parameters that the court can follow. Matrimonial issues are generally confined to the bedroom and the matrimonial home, away from public eye and gaze. A lot of times these cases do not have any independent or impartial witnesses. The doctrine of preponderance of probabilities has to be applied while evaluating the evidence, and the court must decide the matter based on the overall picture that emerges from the undisputed and uncontroverted facts and circumstances, and those established by documentary or other evidence.

27. In the case of Sheenu Mahendru v. Sangeeta, (2019) SCC Online Utt 376 the Court observed: “The burden lies upon the respondent to establish the charge of cruelty. The question is as to what is the standard of proof to be applied in order to judge whether the burden has been discharged or not. The rule which governs matrimonial cases is, that a fact could be established, if it is proved by a preponderance of probabilities. Proof beyond a reasonable doubt is a proof of a higher standard, which generally governs criminal trials or trials involving inquiry into issues of a quasicriminal nature. Such proof beyond a reasonable doubt could not be imported in matters of pure civil nature especially matrimonial matters.”

28. In the present case, the Family Court correctly employed the standard of proof of preponderance of probabilities. The facts which emerge from the record are that:

(i) The parties lived together only for a period of 64 days.

(ii) The parties have been living separately for a decade now,

(iii) The Respondent walked out in 2011, and filed for divorce under

(iv) It was accepted by the Appellant that he, indeed, was admitted to the Hope Foundation and was treated for Bipolar Disorder.

(v) The Appellant has admitted in his email that his mother had demanded dowry from the Respondent.

(vi) The Appellant himself refused to reside with the Respondent, or file for divorce by mutual consent.

29. Upon a perusal of the pleadings and evidence led by the parties before the Family Court, we find that the Appellant/husband has not been able to substantiate any of his grounds of challenge. The Family Court has discussed and appreciated the evidence before it, and we find no perversity in the impugned judgment. The number of incidents pleaded and duly proved by the Respondent before the Family Court are sufficient to hold the Appellant guilty of marital cruelty. These instances cannot be said to be the ordinary wear and tear of day-to-day life.

30. The parties cohabited together only for a period of 64 days and have been living separately since 10.07.2011. It has been a decade since the parties have lived together and the entire substratum of marriage has perished. Even when the parties were, in fact, living together, there were many allegations of dowry demand, cruelty and abuse. There are several allegations and counter allegations in the Family Court record, which display the heightened animosity between the parties.

31. As noted by the Hon‟ble Supreme Court in Sivasankaran v Santhimeenal, (2021) SCC Online SC 702:

32. Further it has also been observed by the Supreme Court in Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558:

33. The continuation of the marriage between the parties would cause undue harm to not only the Respondent/wife, but also the Appellant/husband. There has been a complete breakdown of marriage.

34. It is clear from a bare perusal of the matter at hand that the marriage is beyond repair. The continuity of this marriage is fruitless, and is rather causing grief and harm to both the parties.

35. In this view of the matter, we do not find ourselves inclined to grant the Appellant‟s prayer against the dissolution of marriage and find no infirmity in the impugned order dated 30.11.2019.

36. Accordingly, the present appeal is dismissed being devoid of merits.

JASMEET SINGH, J VIPIN SANGHI, J DECEMBER 01, 2021/ „ms‟