MANU/MH/1944/2013

Equivalent Citation: 2014(1)ALLMR854, 2014(1)BomCR556, II(2014)DMC75Bom., 2014(1)MhLj440

IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 16 of 2006

Decided On: 13.11.2013

Appellants: "M"
Vs.
Respondent: "R"

Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and Revati Mohite Dere, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Mr. A.G. Toraskar

For Respondents/Defendant: Mr. S.G. Deshmukh

Case Note:
Family - Grant of decree of divorce - Section 13 (1) of Hindu Marriage Act,
1955 - Family Court granted decree of divorce to Respondent/husband on
ground of cruelty and desertion under Section 13 (1) (ia) and (ib) of Act -
Hence, this Appeal - Whether Family Court was right in holding that
Respondent/husband was entitled to decree of divorce under Section 13(1)
(ia) and (ib) of Act - Held, it was observed that allegations made by Appellant
wife would certainly constitute mental cruelty to Respondent husband -
Allegations made in letter written at Exhibit 27 were extremely serious, vulgar,
filthy and wild and were of such nature that any person against whom such
wild, serious and unsubstantiated allegations were made was bound to
undergo mental pain, agony and suffering - However allegations and language
used therein would constitute mental cruelty which was of such nature that
Respondent husband could not reasonably be expected to live with Appellant
wife thereafter - Evidence adduced by Respondent husband clearly showed
disaffection and refusal of Appellant wife to cohabit with Respondent husband
- Perusal of evidence of Appellant wife and her witnesses, it was found that
evidence did not inspire confidence, was bereft of details and was inconsistent
and contradictory with regard to grounds of 'cruelty' and 'desertion' raised by
Respondent - Thus considering allegations and incidents enumerated in detail
by Respondent husband in evidence, they would cumulatively constitute
'cruelty' - Therefore Family Court had rightly come to conclusion that Appellant
husband was entitled to decree of divorce under Section 13(1) (ia) of Act -
Further factum of desertion was proved by Respondent husband and that
Respondent husband had left his own house because of conduct of Appellant
wife - Respondent had proved acts of cruelty by Appellant wife and that it
would not be possible for him to cohabit with her - Evidence on record clearly
showed that Appellant wife with her conduct had made it impossible for
Respondent husband to live in matrimonial home and as result of which he
was compelled to abandon house - Thus decree of divorce passed by Family
Court also ought to had been confirmed under Section 13(1) (ib) of Act -
Appeal dismissed.

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Ratio Decidendi:
"Party shall entitle for decree of divorce if cruelty and desertion on part of one
of spouse is proved by evidence."

JUDGMENT

Revati Mohite Dere, J.

1. Considering that this Judgment would be available in public domain, we have

described the appellant and the respondent as 'M' and 'R' respectively. The appellant
wife, takes exception to the Judgment and Decree dated 1st March, 2005 passed by the
learned Judge of the Family Court, Bandra, Mumbai, in M.J. Petition No. A-1915/1996,
by which the marriage solemnized between the parties i.e. the appellant wife and
respondent husband came to be dissolved by a Decree of Divorce. The respondent
husband had filed a Petition in the Family Court, Bandra, Mumbai on 18th October,
1996, praying therein for a decree of divorce on the ground of cruelty and desertion i.e.
under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred
to as 'the said Act'). The appellant wife had also filed M.J. Petition No. C-130 of 1995,
on 15th September, 1995 praying therein for maintenance under Section 18 of the
Hindu Adoption and Maintenance Act, which came to be dismissed, by the same
impugned Judgment and Decree dated 1st March, 2005. However, as the Appellant-wife
has not challenged the dismissal of her M.J. Petition No. C-130/1995, we are in this
present Appeal concerned with the challenge to the Judgment and Decree dated 1st
March, 2005, only to the extent, that it grants decree of divorce to the Respondent -
husband under Sections 13(1)(ia) and (ib) of the said Act.

2. Before adverting to the submissions advanced by the learned Counsel for the parties,
it would be necessary to place on record certain facts as would be necessary for
determination of the issues before us:

The respondent husband had filed a petition in the Family Court, Bandra,
Mumbai seeking divorce on the ground of cruelty and desertion, under
Section 13(1)(ia) and (ib) of the 'said Act.' He has stated in his petition, that
his marriage with the appellant was solemnized on 15th March, 1971, as per
Hindu Vedic Rites at Mumbai, and that there were two issues from the
wedlock. The two sons were aged about 24 and 22 years of age. He has
stated that it was a love marriage and therefore, no inquiries were made with
regard to the appellant wife's background. He has further stated that he
came from a poor family and was working as a peon in a private firm at Fort,
Mumbai in 1962 and it was only in 1964, that he secured the job of a clerk in
'Automobile Product of India' at Bhandup, Mumbai. He has stated that he
was taking care of his parents and supported them financially. It was alleged
by the respondent husband that after marriage, the appellant wife
disapproved the same and started quarreling with him and his parents, which
compelled him to leave the house along with the appellant wife. After staying
for a couple of months, initially at his cousin's house and then at a friend's
house, they returned back to his parents' house, as he could not make
monetary arrangements for an independent accommodation. He has alleged
that as differences continued, he was compelled to take a single room at
Dombivli, Mumbai.

However, they returned back to his parents house for the wife's first delivery
and after delivery, within a month, they again went to reside at Dombivli.
The respondent husband has stated that after his father expired in 1973, he

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 wanted to stay with his mother, however, the appellant wife flatly refused to
go back. It is alleged that the appellant wife refused to let him stay with his
mother on the pretext that she and her minor son would be alone at
Dombivli. He has stated that he was shocked to see the indifferent behaviour
of his wife and he went through a great deal of mental tension and agony but
tolerated the same, as he loved her and did not want to hurt her feelings.
Respondent husband has further stated that he had taken a loan from the
Credit Society of his Office and gone to reside in a single room at Mulund
with his wife and minor son from 30th December, 1973. He has stated that
he worked hard in order to provide his wife with all the comforts, however,
she always insulted and abused him. The respondent husband has further
stated that the second son was born on 23rd August, 1974, after which he
hoped that his wife would change for the better. He has further stated that
after taking a loan from his Provident Fund and Bhandari Cooperative Bank,
he purchased a two-room kitchen flat at Mulund in 1980 and a small Gala of
about 300 sq. ft. at Thane. He has alleged that as his wife had insisted that
some property should be in her name, he transferred the Current Account
with the Saraswat Cooperative Bank and the business that he had started in
the Gala, in the name and style as 'Ramav Enterprises' in the name of the
appellant wife. He has stated the he purchased certain equipments required
for the business by taking heavy loans and that he attended to the business
after his office hours and conducted the business himself. He has further
stated that as the business started prospering, he found it difficult to manage
his job and the business simultaneously and as he had no helping hand in
the business, he was constrained to resign from his job in 1986. He has
further stated that he had invested all the monetary dues which he had
received after his resignation for expansion of his business. It is alleged by
the respondent husband that after his resignation, he had requested the
appellant wife to transfer the business in his name, but she refused, which
led to quarrels between them and finally with great reluctance, she
transferred the business as well as the Bank Account in his name. It is
further alleged that his wife's harassment and ill-treatment got worse and
she would very often insult and abuse him in the most filthy language, in the
presence of the children and that in order to prevent any quarrel, he would
remain silent. He has further alleged that the appellant wife started openly
alleging that he was having illicit relations with his own sister, which came as
a great shock to him resulting in mental trauma, pain and agony and his
health deteriorated. It was also alleged that the appellant started prejudicing
the minor children against him, as a result, they showed no respect for him.
The respondent has given certain instances with regard to the behaviour of
the appellant wife and the filthy language used by her. He alleged that the
wife had prejudiced the children to such an extent, that one of his son
attacked him with a scissor and would openly threaten him that if he did not
leave the house, he would kill him. He has further alleged that his children,
at the instance of the appellant wife, started passing remarks like "Why don't
you die soon?". He has stated that as a result of the said behaviour he was
made to feel unwelcome in his own house, by the appellant wife who showed
hatred and animosity towards him. He has alleged that the hatred shown by
the appellant wife and the children daily, coupled with threats made it
impossible for him to stay in his own house. It is alleged that the said
conduct of his wife and children affected his health and consequently his
business. He has alleged that the respondent wife even took the house keys
from his possession and instructed him to come home after prior intimation
on telephone. According to the respondent husband, it was in these

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 circumstances that he was constrained to leave home on 19th August, 1993.

He has stated that he went to Chiplun with his machinery and tried to set up
the business. He has further stated that on 7th October, 1993, he was
shocked and surprised to see his wife and son at Chiplun, where they came
and created a nasty scene. He has alleged that his son broke the glass on a
writing table and tried to assault him with a big piece of glass. As a result, of
which he was compelled to lodge a complaint i.e. N.C. No. 2128 against the
appellant wife and his son with the Police on 7th October, 1993 at Chiplun.
The respondent husband has further stated that as it was not feasible for him
to continue his business at Chiplun due to innumerable difficulties, he
discontinued the business and returned back to Mumbai in January, 1994
and went to reside with his brother at Kandivli for about a month. He has
stated that his brother personally met the appellant wife with a view to bring
about a reconciliation between the two. However, the wife is alleged to have
told his brother that when they went to Chiplun to bring back the
respondent, the respondent became mad, and therefore they cancelled the
idea of bringing him to Mumbai. It is alleged that the wife even warned the
respondent's brother that if the respondent dared to return home, they
would make arrangements to get him admitted into a Mental Asylum. The
respondent has further stated that when he went back to Chiplun in March,
1994, the watchman gave him a notice sent by an Advocate. He noticed that
the same was undated and as per the postal stamp, it was sent some time in
February, 1994. He has alleged that he met the Advocate, who after hearing
him, agreed to bring about a settlement, which attempt failed. It is alleged
by the respondent husband that the appellant wife took from the Advocate,
the description of the two persons, who had accompanied him to the
Advocate's Office, and from the description, presumed that one of them was
Mr. H. It is stated by the respondent husband that the appellant wrote a
letter to Mr. H dated 25th October, 1994 and enclosed another letter dated
3rd November, 1994 addressed to the respondent with it and instructed Mr.
H to hand over the same to the respondent. The said letters are at Exhibits
27 (colly.) The contents of the letter dated 3rd November, 1994 addressed to
the respondent which was sent to Mr. H were extremely derogatory, abusive,
filthy and perverse.

The respondent husband has stated that as he could not get separate
accommodation, he started staying in a workshop at Bhandup and eating
food from the Hotel and managed his day-to-day activities with great
difficulty. It is alleged that the appellant wife only with a view to harass him
lodged a missing complaint with the Mulund Police Station on 6th June,
1995, inspite of being fully aware that he was in Mumbai and prior to that, in
Chiplun.

He has alleged that on 7th February, 1995, his wife came to his workshop at
Bhandup, abused him in the most filthy language and even assaulted him.
He has alleged that although, he had not harmed her in any way, the
appellant wife lodged a false police complaint against him with the Bhandup
Police Station. The respondent has further stated that the flat, where the
wife and sons are residing, stands in his name and that he had purchased it
out of his own savings and that the flat is fully furnished with all facilities. He
has further stated that although the appellant wife had transferred the Gala
and business in his name, she had taken forcible possession of the said Gala
from one Mr. Amre, to whom, the said Gala was later on given by him on

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 Leave and License Basis. He has further stated that it is only on 22nd
December, 1995, when the appellant wife made a statement before the
Marriage Counselor, that he learnt that she had already sold the Gala without
consulting him, despite the fact that the same was purchased with his hard
earned money. He has further stated that in view of the several domestic
problems faced by him, he has been staying in a small room, admeasuring
10 x 10 sq ft. on rental basis. He has alleged that since the time of his
marriage, he has been continuously treated with extreme physical and
mental cruelty by the appellant wife and therefore prayed for a decree of
divorce under Section 13(1)(ia) of the said Act. He has stated that he had
not condoned the acts of cruelty inflicted on him by the appellant wife.

He has further stated that from 19th August, 1993, he was constrained to
leave his home and has been continuously deserted by the appellant wife
and has been deprived of his marital right and as such claimed that he was
also entitled for a decree of divorce under Section 13(1)(ib) of the said Act.

3. The appellant wife contested the petition filed by the respondent husband by filing
her written statement. She has denied all the allegations made by the respondent
husband, as against her. The appellant wife has admitted that the respondent was
residing with his parents and was maintaining them. According to the appellant, her
sister-in-law came from her native place and started residing with them. The appellant
has alleged that her mother-in-law was interested in keeping her own daughter and
therefore drove her and the respondent out of the house. The appellant has admitted
that they went and stayed at Bhandup and later came back to her in-laws house.
According to the Appellant, when she was eight months pregnant, she was driven out of
the house by her mother-in-law and sister-in-law after a quarrel. She has alleged that
the respondent did not inform her of the sale of the Dombivli flat nor gave her any
money from the sale proceeds. The appellant has denied that she gave any mental
tension to the respondent. She has admitted that she started residing at Mulund with
the respondent from December 1973 and at Mulund from 1980, but claimed ignorance
about the sources of funds for purchase of the same. According to her, she was making
payment towards the loan from the business which she was running in the name of
'Ramav Enterprises'. She has stated that the gala was purchased by her from her own
savings. According to the appellant she had written a letter to the respondent, alleging
illicit relations with his sister as a rebound and in anger as the respondent had alleged
that she had illicit relations with her son. According to her, there was nothing for
respondent to be shocked and surprised, as he deserved the same for making
irresponsible allegations against the sons. The appellant has alleged that the
respondent would tell the children that they were her agents and were helping her in
her bad activities, which was untrue. She denied having poisoned the children against
the respondent. She also denied that the son threw a scissor at the respondent and
threatened to kill him.

4. The appellant has admitted that the respondent left home in August, 1993, but has
stated that it was out of his own free will. She has denied the Chiplun incident. She
admits that the respondent came back to Mumbai and started residing with his brother.
According to her she tried bringing him back, but he refused. She has denied having
lodged a false case with the police. She has stated that it was the respondent who ill
treated her and the sons. According to her, as the respondent left on his own accord
and as she had not treated him with cruelty, he was not entitled for divorce under
Section 13(1)(ia)(ib) of the Hindu Marriage Act.

5. It is pertinent to note, that during the pendency of the said petition i.e. M.J. Petition

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No. A-1915/1996 filed by the respondent husband, an application came to be preferred
by him, seeking amendment to his petition in January, 2000. Certain details of acts
constituting cruelty and desertion were set out in the said amendment, which came to
be granted by the learned Judge. It was alleged by the respondent; that on account of a
flimsy quarrel on 10th July, 1993, the appellant started abusing him in filthy language
and threw utensils on him when he asked her to lower her voice. It was further alleged
that the appellant would threaten to commit suicide and put him behind bar forever, if
he did not concede to her demands. The respondent had also alleged that the appellant
had refused to keep marital relations with him since August 1993, when she compelled
him to leave the matrimonial home and thereafter prevented him from entering the
house.

6. The Appellant replied to the aforesaid allegations by filing her reply. She denied all
the allegations.

7. The learned Family Court Judge, Bandra framed issues on the basis of both the
petitions. Thereafter the parties adduced evidence before the Family Court.

8. It would also be necessary to advert to the evidence adduced by the parties in

support of their claim. The respondent husband in support of his claim for divorce,
examined himself (Exhibit 17), witness Mr. S - a family friend and neighbour of the
respondent husband (Exhibit 41), Witness Mr. H - a colleague of the respondent
husband who was working with him in the same company (Exhibit 42) and to whom
letter (Exhibit 27) was addressed and his daughter in law (Exhibit 88). The appellant
wife examined herself (Exhibit 44), and her son (Exhibit 93) and jeweller Mr. J (Exhibit-
101).

9. The evidence of the respondent husband is consistent with the averments set out in
the marriage petition and has already been set out hereinbefore. He has produced two
letters sent to Mr. H - one addressed to Mr. H and one addressed to him sent on Mr. H's
address. The said letters are dated 25th October, 1994 and 3rd November, 1994
respectively. It is pertinent to note that the said letters have been admitted by the
appellant wife. He has stated that in the said letter addressed to the respondent, the
appellant wife had alleged that the respondent was having illicit relations with his sister
and sister-in-law and has also used filthy and abusive language against him. There is no
cross-examination on certain specific averments with regard to the alleged acts of
cruelty deposed to by the respondent husband.

10. The second witness examined by the respondent husband is one Mr. S in support of
his claim. The said witness was examined with regard to certain documents with regard
to the business and transfer of business from the appellant wife to the respondent. It is
not relevant for us to deal with the evidence of the witness or his cross-examination, as
the said witness has not been examined with regard to the alleged acts of cruelty or
with regard to desertion, with which we are concerned in the present Appeal. A
suggestion was put by the appellant to the said witness that he was tutored by the
respondent husband which was denied by him. Infact the appellant had sent a letter
dated 20th December, 1994 (Exhibit 28) stating therein that he was supporting the
respondent, as he wanted to grab the respondent's property.

11. The respondent examined Mr. H to prove letters at Exhibit 27 (colly.) dated 25th
October, 1994 and 20th December, 1994 respectively which were received by him from
the appellant. He has stated in his examination-in-chief that he was working in the
company along with the respondent. He has stated that he received a letter from the
appellant at his residence, pursuant to which he learnt about the strained relations

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between the two. He has stated that one letter was addressed to him and the other
letter was addressed to the respondent. He has stated that in the letter addressed to
him by the appellant, it was alleged that he wanted to grab the respondent's workshop.
He has stated that the said allegations were totally false. He has further stated that the
letter which was addressed to the respondent was open and was attached to the letter
sent to him and therefore he read the said letter. He has stated that the language used
in the said letter addressed to the respondent was filthy and abusive and therefore, he
handed over both the letters to the respondent. In the cross-examination, it is pertinent
to note that the appellant has not disputed having sent the letters at Exhibit 27 (colly.).
The only suggestion that was made to the said witness was that the said letter was
written to him only because he had accompanied the respondent husband to one
Advocate's office to seek advice, which he has denied.

12. The respondent also examined his daughter-in-law. She stated that she was
married to the appellant's son on 13th January, 2001 at Thane and that it was an
arranged marriage. The said witness has given details of post 2001 events with regard
to her relationship with her husband, her mother-in-law i.e. appellant, which were
strained. She has stated that the appellant would nag her and as a result of her
interference, there used to be quarrels between her and her husband. She stated that
her father-in-law i.e. respondent lives at Bhandup in a slum area, in a chawl in a small
room and that she knew him for the last one and half year and that, he appears to be a
simple person. Her evidence, however is not relevant and therefore, we do not wish to
deal with her evidence, as she was married in 2001 and as such, had no knowledge
about the alleged acts of cruelty and desertion on which the petition came to be filed by
the respondent husband for divorce.

13. The appellant wife examined herself. She has reiterated the contents set out in the
written statement, which are adverted to in detail in the earlier part of this Judgment. It
would be apposite to mention here that the appellant wife had also filed a petition for
maintenance, which was also clubbed with the respondent's petition. The entire thrust
of her examination-in-chief is with regard to the gala and to the financial problems
faced by her after the separation. She has alleged that the respondent husband had left
the house on 20th January, 1993 and 24th April, 1993 and had gone to reside with his
sister. She has alleged that the respondent was residing at his sister's place. When she
went there, she found that the husband was at home and that after a lot of persuasion
by the elder son, respondent came home. She has stated that the respondent husband
alleged that she was indulging in prostitution and that she had tolerated the same for
the sake of marriage. She had further alleged that the respondent had behaved
abnormally and eccentrically. She has further alleged that her elder son told her that
the father i.e. respondent wanted him to keep a watch on her and that he had promised
to give his son money for the same. She has stated that she was behaving well with the
husband and was looking after him, however it was the respondent who did not behave
responsibly towards the children and never took care of the children. She has stated
that she had taken up all the responsibilities of the children. She has further stated that
the management of 'Ramav Enterprises' was although being looked after by the
respondent, she was helping him in the business. She has further alleged that the
respondent after leaving the house in 1993, would call up and use abusive language
against her, as a result of which, she had lodged complaints against him with the
Bhandup/Mulund Police Station. She has produced the said police complaints (Exhibit 50
and Exhibit 55). She has further alleged that as the respondent husband deserted her,
the Committee members of the Society behaved badly with her and she was not
allowed to attend the society meetings. She has stated that she was residing at the said
residence at Mulund with her younger son, his wife and their daughter.

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14. The appellant wife has produced a letter dated 8th February, 1995 being Exhibit 50,
written to the Deputy Commissioner of Police, Bhandup wherein she has stated with
regard to an incident which allegedly took place at 'Ramav Enterprises'. She has stated
that the respondent husband abused her at the work place and even assaulted her. She
has further alleged in the said letter, being Exhibit 50 that the respondent husband was
having illicit relations and as he wanted to avoid paying maintenance to her, he left the
house. She has further alleged that the respondent husband at the behest of his brother
and sister-in-law was allegedly threatening to kill the appellant wife and the children.

15. The entire thrust of the cross-examination by the respondent husband is on the
gala business and documents pertaining to the same. Suggestion was made that she
was receiving a sum of Rs. 40 to 50 thousand per month from the investment made by
him from the sale proceeds of a gala at Thane which was denied by her. The said
witness has denied the suggestions made by the respondent husband with regard to
alleged acts of cruelty and desertion. She has also denied the suggestion that she had
filed a number of false complaints against the respondent.

16. The appellant examined her son as her witness. He has stated that in 1992 (when
he was 20 years of age), he was forced by his father i.e. respondent husband to leave
the job and keep a watch on his mother i.e. appellant wife, as she was a woman of bad
character. He has stated that at that time, his younger brother was taking education
and was studying Instrumentation Engineering. He has further alleged that his father
i.e. respondent left the home without informing them. He has stated that at the
relevant time, he was 20 years of age. The said witness has done his Masters Degree in
Management and has stated that his mother was of good character and that she had
taken efforts to bring them up and had borne all there educational expenses. He has
stated that they had a tough and hard life during those days and that it was difficult for
them to make both ends meet. He has further stated that his father (respondent) had
neglected his responsibility towards them and that he would abuse his mother in a filthy
language and would even assault her without any reason. He has further alleged that
the respondent had left home when his younger brother had attained the age of 18, so
as to avoid paying maintenance to them. In his cross-examination, several suggestions
were made on behalf of the respondent, which were denied by him.

17. The appellant wife has also examined a jeweller Mr. J in support of her case to
show that the appellant had come to sell her jewelery at this shop. In his cross-
examination, he has admitted that the purchase bills, which have been marked as
Exhibit 103, do not mention the amount given to the appellant. Similarly, there is no
signature of the appellant on the same. He has stated that he does not know the
appellant and that had come to attend the said case pursuant to the Court Summons.
The said witness was unable to furnish the books of accounts on the ground that they
were spoilt. He has admitted that he does not recollect the exact date on which the
appellant had come for the said transaction. He has denied the suggestion that he knew
the appellant for a long time and that he had come to the Court only to falsely depose
in her favour and to file bogus documents in Court.

18. The learned Judge of the Family Court after considering the evidence on record by
Judgment dated 1st March, 2005 granted decree of divorce on the grounds of cruelty
and desertion to the respondent husband. It is pertinent to note, that the appellant has
not challenged the dismissal of the C-130 of 1995 which was for maintenance and
therefore we confine ourselves to the challenge in this Appeal i.e. grant of decree of
divorce to the respondent on the grounds of cruelty and desertion.

19. We have heard Mr. A.G. Toraskar, learned counsel appearing for the Appellant wife

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and Mr. S.G. Deshmukh, learned counsel appearing for the Respondent husband.

20. The learned counsel for the appellant wife has taken us through the pleadings,
notes of evidence and other documents and record. He urged that the respondent
husband had failed to establish either cruelty or desertion by the appellant wife. He
urged that to the contrary, it was the respondent husband who treated the appellant
wife with cruelty and it was the respondent husband who deserted her and therefore he
must be precluded from taking advantage of his own wrong. It is pertinent to note that
the appellant wife admitted the documents at Exhibit - 27 i.e. letter addressed to Mr. H
along with a letter addressed to the respondent wherein unfounded and unsubstantiated
allegations with regard to illicit relations of the respondent with his sister and sister-in-
law were made. It was urged by the learned counsel that the said letter i.e. Exhibit 27
was sent by the appellant as a counter blast to the alleged acts of cruelty by the
respondent and the allegations made by him against the appellant. He, therefore, urged
that the Appeal be allowed.

21. Per contra, Mr. S.G. Deshmukh, learned counsel for the respondent supported the
impugned Judgment granting decree of divorce on the ground of cruelty and desertion.
He submitted that the appellant wife had made life impossible for him by her alleged
acts of cruelty which compelled the respondent husband to leave the matrimonial
house. It was contended by the learned counsel for the respondent, that the letter
dated 25th October, 1994 at Exhibit 27 addressed to the respondent through his friend
Mr. H was extremely vulgar, filthy and derogatory. It was contended that the contents
therein had caused the respondent tremendous mental trauma, pain and agony, as the
allegations were totally unfounded, unsubstantiated and baseless. He urged that the
learned Judge, Family Court has rightly accepted the evidence with regard to cruelty
and desertion and thus sought dismissal of the Appeal.

22. We have given our anxious considerations to the evidence and material on record
and more particularly documents at Exhibit 27 i.e. letters dated 25th October, 1994 and
3rd November, 1994 written to Mr. H and the respondent. According to us, the letter at
Exhibit 27 dated 3rd November, 1994 addressed to the respondent husband which was
sent along with a covering letter dated 25th October, 1994 to Mr. H, on the address of
Mr. H is a damning piece of evidence against the appellant wife. At the cost of
repetition, it is necessary to mention that the said letters at Exhibit - 27 have been
admitted by the appellant wife and therefore the contents therein can be read in
evidence to decide whether the language in the said letter would amount to cruelty as
contemplated under section 13(ia) of the said Act. As has been stated earlier, the
respondent has examined Mr. H to prove the letters at Exhibit 27, sent to his residence
and which were opened and read by him. We have perused the letters and considering
the nature of allegations and the vulgar and scandalous language used in the said
letter, we do not intend to reproduce the same. Suffice it to say, that the letters are
extremely vulgar, abusive, obscene and derogatory. By the said letter, the appellant
wife has made wild and baseless allegations against the respondent husband that he
was having illicit relations with his own sister and sister-in-law. The said letter at Exhibit
27 has not been denied by the appellant wife nor has she substantiated the allegations
set out in the letter. To the contrary, she has stated that the said letters were sent as a
counter blast to the ill-treatment suffered by her at the hands of the respondent and
that he had no reason to be shocked. In addition to the said letter at Exhibit 27, there is
another letter dated 8th February, 1995, addressed to the Deputy Commissioner of
Police, Bhandup Police Station, sent by the Appellant, which is at Exhibit - 50. In the
said letter, apart from stating that the respondent had assaulted her, she has stated
that the respondent had prepared a master plan, 18 months ago, to kill her, so that
there was no impediment for continuing with the illicit relation.

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23. Before we analyse the evidence of cruelty adduced by the respondent, it would be
necessary to consider as to which acts constitute 'cruelty'. The expression 'cruelty' have
been used in relation to human conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties and obligations. 'Cruelty' thus is a course
or conduct of one, which adversely affects the other. It may be mental or physical,
intentional or unintentional. It is a question of fact and degree. If it is physical, the
Court will have no problem in determining the same. However, if it is mental cruelty,
the enquiry must begin with the nature of cruel treatment and the impact of such
treatment in the mind of the spouse, whether it caused reasonable apprehension that it
would be harmful or injurious to live with the other. Of course ultimately, it is a matter
of inference to be drawn by taking into account the nature of conduct and its effect on
the complaining spouse. The conduct complained of must be "grave and weighty" so as
to come to a conclusion that the spouse cannot be reasonably expected to live with the
other spouse. It must be more serious than "ordinary wear and tear of married life."
Mental cruelty must consist of verbal abuses and insults by using filthy and abusive
language leading to constant disturbances of mental peace of the other party.

24. It would be apposite to refer to the decision, in the case of Naveen Kohli v/s. Neelu
Kohli MANU/SC/1387/2006 : 2006 SCC 1675 where the Apex Court held that cruelty is
a course/conduct of one which adversely affects the other. The expression cruelty as
appearing in Section 13, clearly admits in its ambit and scope such acts which even
cause mental agony to the aggrieved party. Intention to be cruel is not an essential
element of cruelty as envisaged under section 13(1)(ia) of the Act. It is sufficient if the
cruelty is of such a nature that it becomes impossible for the spouses to live together.
An inference can be drawn from the attending facts and circumstances taken
cumulatively. The Apex Court, infact in the case of Vijaykumar Ramchandra Bhate vs.
Neeta Vijaykumar Bhate MANU/SC/0316/2003 : AIR 2003 SC 2462 was required to
consider "whether the averments, accusations and character assassination of the wife
by the appellant husband in the written statement constitutes mental cruelty to claim
decree of divorce under section 13(1)(ia) of the Hindu Marriage Act". The Apex Court in
paragraph 7 of the said Judgment has observed as under:

The question that requires to be answered first is as to whether the

averments, accusations and character assassination of the wife by the
appellant husband in the written statement constitutes mental cruelty for
sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The
position of law in this regard has come to be well settled and declared that
leveling disgusting accusations of unchastity and indecent familiarity with a
person outside wedlock and allegations of extra marital relationship is a
grave assault on the character, honour, reputation, status as well as the
health of the wife. Such aspersions of perfidiousness attributed to the wife,
viewed in the context of an educated Indian wife and judged by Indian
conditions and standards would amount to worst form of insult and cruelty,
sufficient by itself to substantiate cruelty in law, warranting the claim of the
wife being allowed. That such allegations made in the written statement or
suggested in the course of examination and by way of cross-examination
satisfy the requirement of law has also come to be firmly laid down by this
Court. On going through the relevant portions of such allegations, we find
that no exception could be taken to the findings recorded by the Family
Court as well as the High Court. We find that they are of such quality,
magnitude and consequence as to cause mental pain, agony and suffering
amounting to the reformulated concept of cruelty in matrimonial law causing
profound and lasting disruption and driving the wife to feel deeply hurt and
reasonably apprehend that it would be dangerous for her to live with a

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 husband who was taunting her like that and rendered the maintenance of
matrimonial home impossible.

25. Applying the aforesaid ratio to the facts of the present case and considering the
fact, that the letters at Exhibit 27 have not been disputed by the appellant wife, we are
inclined to observe, that the allegations made therein by the appellant wife would
certainly constitute mental cruelty to the respondent husband. The allegations made in
the said letter written at Exhibit 27, are extremely serious, vulgar, filthy and wild and
are of such a nature that any person against whom such wild, serious and
unsubstantiated allegations are made, is bound to undergo mental pain, agony and
suffering. The allegations made in the said letter written to the respondent clearly
suggest that the husband was having illicit relations with his own sister and sister-in-
law. The vulgar and filthy language used therein restrains us from reproducing the
same in the Judgment. We are firmly of the opinion that the said allegations and
language used therein, would constitute mental cruelty which is of such a nature that
the respondent husband cannot reasonably be expected to live with the appellant wife
thereafter. The position of law is well settled that levelling disgusting accusations of
extra-marital relationship amounts to grave assault on the character, honour,
reputation, status as well as the health of a person. Such aspersions which are
unsubstantiated constitute worst form of cruelty, sufficient by itself to constitute cruelty
in law. The appellant wife has not even made an attempt to substantiate the allegations
made in Exhibit - 27.

26. In addition to the letter at Exhibit 27, the evidence adduced by the respondent
husband clearly shows disaffection and refusal of the appellant wife to cohabit with the
respondent husband. The instances narrated by the respondent husband in his evidence
is consistent and clearly shows that the hostile attitude and persistent non cooperation
of the appellant wife had made life impossible for him, as a result of which he was
constrained to leave his own house and find an alternate accommodation. The appellant
in a letter (Exhibit 50) addressed to the Deputy Commissioner of Police, Bhandup Police
Station has devoted one entire paragraph to the allegations regarding the illicit relations
of the respondent and his plan to eliminate her on account of the same. Both the
spouses have alleged cruelty against the other. However, respondent husband has
sought divorce on the ground of cruelty and desertion and the appellant wife curiously
though has alleged cruelty by the respondent has not claimed divorce or judicial
separation. On perusal of the evidence of the appellant wife and her witnesses, we find
that the evidence does not inspire confidence, is bereft of details and is inconsistent and
contradictory with regard to the grounds of 'cruelty' and 'desertion' raised by the
respondent. The appellant wife had also filed on record the police complaints lodged by
her at Exhibit 55. According to her, the respondent used to call her and abuse her.
However, it is relevant to note that there is not a whisper with regard to the said
allegations in the appellant's petition for maintenance. Ordinarily, mental cruelty, in our
view, will not depend upon the numerical count of such incidents or only on the
continuous course of such conduct, but would really go by the intensity, gravity and
stigmatic impact it may have, when meted out even once and the deleterious effect of it
on the mental attitude of a spouse. Considering the allegations and the incidents
enumerated in detail by the respondent husband in the evidence, in our opinion they
would cumulatively constitute 'cruelty' and which became fait accompli the day the
appellant sent the letters at Exhibit 27. In the present case, we are of the opinion that
the Family Court has rightly come to the conclusion that the appellant husband is
entitled to a decree of divorce under section 13(1)(ia) of the said Act.

27. Now coming to the second issue i.e. the ground of desertion under section 13(1)(ib)
on which, the Family Court has granted the decree of divorce.

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28. Once we have come to the conclusion, that the appellant wife made it impossible
for the respondent husband to live in the house, by her conduct, it can be safely
inferred that he was compelled to abandon the house on account of the said conduct.

29. The Apex Court in the case of Adhyatma Bhattar Alwar v/s. Adhyatma Bhattar Sri.
Devi MANU/SC/0719/2001 : AIR 2002 SCC 88 has dealt with the concept of desertion in
the context of matrimonial law. It is observed that there is no comprehensive definition
of the term 'desertion' and that it was wide enough to include willful neglect.

30. In order to prove desertion it is necessary to prove two elements i) the absence of
consent and ii) the absence of conduct giving reasonable cause to the spouse to leave
the matrimonial home to form the necessary intention. In Savitri Pandey vs. Prem
Chandra Pandey MANU/SC/0010/2002 : AIR 2002 SC 591 the Apex Court held that
desertion under section 13(1)(ib) means intentional permanent forsaking and
abandonment of one spouse by the other without the other's consent and without
reasonable cause. 'Desertion' is not a single act complete in itself, it is a continuous
course of conduct to be determined in the facts and circumstances of each case. The
onus was on the respondent to prove that he was not guilty of such conduct and that he
was not taking advantage of his own wrong as contemplated under Section 23 of the
said Act. Inference of desertion has to be made on balance of probabilities. It is held in
the case of Laxman v/s. Meena MANU/SC/0128/1963 : AIR 1964 SC 40 that in cases of
desertion, the factum as well as the animus deserendi have to be proved. The burden of
proof was therefore on the respondent husband. The learned Judge rightly came to the
conclusion that in the present case the factum of desertion is proved by the respondent
husband and that the respondent husband had left his own house because of the
conduct of the appellant wife. As stated above the respondent had proved the acts of
cruelty by the appellant wife and that it would not be possible for him to cohabit with
her.

31. The evidence on record clearly shows that the appellant wife with her conduct had
made it impossible for the respondent husband to live in the matrimonial home and as a
result of which he was compelled to abandon the house. The learned Family Court has
rightly come to the conclusion that when the appellant was cross-examined on the
point, she had initially denied taking keys but had thereafter admitted that she had
asked the respondent husband to call prior to his arrival in the house. The said
admission clearly indicates that the respondent did not have the keys of the house and
infact corroborated his statement that he could not enter the house unless the
respondent was in the house.

32. Considering the aforesaid, we are of the opinion that the decree of divorce also
ought to have been confirmed under section 13(1)(ib) of the said Act. It appears that
the learned Judge, Family Court, Bandra, Mumbai has granted Rs. 1,000/- towards
maintenance from the date of the order i.e. 1st March, 2005 under Section 25 of the
said Act. Section 25 of the said Act (relevant sub-sections) reads thus:-

25.(1) Permanent alimony and maintenance.-(1) Any court exercising

jurisdiction under this Act may, at the time of passing any decree or at any
time subsequent thereto, on application made to it for the purposes by either
the wife or the husband, as the case may be, order that the respondent shall
pay to the applicant for her or his maintenance and support such gross sum
or such monthly or periodical sum for a term not exceeding the life of the
applicant as, having regard to the respondent's own income and other
property of the applicant, the conduct of the parties and other circumstances
of the case, it may seem to the Court to be just, and any such payment may

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 be secured, if necessary, by a charge on the immoveable property of the
respondent.

(2) If the court is satisfied that there is a change in the circumstances of

either party at any time after it has made an order under sub-section (1), it
may at the instance of either party, vary, modify or rescind any such order in
such manner as the court may deem just.

(3) -----

The learned Judge, rejected the appellant wife's application petition being M.J. Petition
No. C-130 of 1995, by the same Judgment dated 1st March, 2005 and the same has not
been challenged by the appellant nor has any other application for enhancement of
maintenance been filed in this Court. In view of Section 25 of the said Act, we confirm
the said order directing the respondent husband to pay the amount of Rs. 1,000/-
towards maintenance. However, we make it clear that the appellant is not precluded
from preferring an application for modification of the Order of Maintenance under
Section 25 of the said Act. We also make it clear that we have not adjudicated on the
appellants right to claim maintenance, as it was not the subject matter of challenge
before us.

Accordingly, we pass the following order:-

(i) Family Court Appeal No. 16 of 2006 is dismissed and the Judgment and
Decree dated 1st March, 2005 passed by the Family Court, Bandra, Mumbai
is confirmed. The decree of divorce is upheld.

(ii) The respondent husband shall pay permanent alimony of Rs. 1,000/- per
month, towards the maintenance as directed by the Family Court, Bandra,
Mumbai by the impugned Judgment and Decree dated 1st March, 2005.
However, the appellant wife is at liberty to apply to the Family Court for
enhancement of the maintenance in accordance with subsection (2) of
Section 25 of the said Act.

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