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Geeta Nainy @ Kanta Vs. B.B. Nainy - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCivil First Appeal No. 354 of 1982
Reported in27(1985)DLT292
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantGeeta Nainy @ Kanta
RespondentB.B. Nainy
Advocates: O.P. Saxena,; Subhash Gupta and; J.C. Mahindroo, Advs
Cases ReferredDastane v. Dastane
family - divorce - section 13 (1) of hindu marriage act, 1955 - appeal against judgment dissolving marriage between parties on ground of cruelty - burden of proving cruelty lies on petitioner - cruelty does not consist of a single isolated act but consists of series of acts spread over a period of time - nothing found on record on basis of which finding of cruelty can be returned against appellant - cruel behavior on part of respondent not established beyond reasonable doubt to the satisfaction of court - appeal succeeds. - - however, it would appear that the parties were not pulling on well and on 17th january 1982 the appellant went to her mother's home consequent upon some quarrel between the parties. she did not bother to look after the household chores and bluntly told the.....j.d. jain, j.(1) this appeal is directed against judgment and decree dated 27th november 1982 of an additional district judge dissolving the marriage between the parties by a i decree of divorce on the ground of cruelty felling under section 13(1)(i)(a) of the hindu marriage act for short the act).(2) the facts giving rise to this appeal in brief are that the parties were. married on 12th february 1981 in accordance with sikh/hindu marriage rites and ceremonies however, they also got the marriage registered with the marriage officer, new delhi, a daughter named jyotika was born of the wedlock on 16th november 1981 at vohra nursing home rajouri garden, new delhi. however, it would appear that the parties were not pulling on well and on 17th january 1982 the appellant went to her mother's.....

J.D. Jain, J.

(1) This appeal is directed against Judgment and decree dated 27th November 1982 of an Additional District Judge dissolving the marriage between the parties by a I decree of divorce on the ground of cruelty felling under section 13(1)(i)(a) of the Hindu Marriage Act for short the Act).

(2) The facts giving rise to this appeal in brief are that the parties were. married on 12th February 1981 in accordance with Sikh/Hindu marriage rites and ceremonies However, they also got the marriage registered with the Marriage Officer, New Delhi, A daughter named Jyotika was born of the wedlock on 16th November 1981 at Vohra Nursing Home Rajouri Garden, New Delhi. However, it would appear that the parties were not pulling on well and on 17th January 1982 the appellant went to her mother's home consequent upon some quarrel between the parties. On 16th February 1982 the respondent-husband moved a petition for dissolution of their carriage by a decree of divorce on the ground of cruelty. The respondent averred, in his petition that the behavior and attitude of the appellant towards him and member of his family had been very uncooperative and even cruel from the very inception of their marriage because the appellant being quarrelsome in nature would pick up quarrel with him and other members of his family for no rhyme or reason and she would run away to her mother's house very often. She did not bother to look after the household chores and bluntly told the respondent that she was not a domestic servant to do all the brudgery like cooking of food and preparation of tea and snacks etc. Only after three days of her marriage she told him that she did not like the behavior of her mother-in-law, sister-in-law i.e. bhabhi Of the respondent and brother-in-law (elder brother of the respondent) and that she could not share the household responsibilities like cooking of meals etc. However, he pacified her saying that she Would learn by arid by and that his mother and sister-in-law would extendfull cooperation in that respect. His mother and sister-in-law too assured of their full cooperation. However, the appellant never respected her mother-in-law or sister-in-law (i.e. Jethani) and misbehaved with them even. in the presence of the guests and friends of the famliy whenever she was asked to prepare tea or bring snacks etc. for the guests. Not only that, she did, not. bother t6 prepare snacks or tea even for respondent who bad to leave for duty early in morning because of shift system obtaining in his office. The appellant would not get up early and whenever she was told by the respondent that if he did not look proper that his mother or sister-in-law should give him tea or snacks at that hour she would rebuke the respondent bluntly telling him that she could not get up earlier than 8.30 AM. However, the respondent pocketed all these insults heaped on him in the wishful thinking that she would improve in due course of time. Further, according to him, she would not allow him to have sound sleep and she would disturb him in the sleep at midnight to complain that she could not pull on with her mother-in-law or sister-in-law although both of them were very nice to her and had been tolerating her misconduct. Still worse, she always felt jealous of his sister-in-law etc. Whenever, he talked to his mother, father, brother or sister-in-law or he picked up his niece. To illustrate misconduct on the part of the appellant her averred specific instance saying that on 13th November 1981 the appellant picked up a quarrel with him at about 7.00 P.M. for no rhyme or reason and then went away to her mother's house despite protests by the mother and sister-in-law of the respondent. However, 15th November 1981 she was brought back to her matrimonial home by her mother and a lady living her neighborhood at about 11.00 at night. At that time the appellant was having labour pains. Her mother asked the respondent to get her admitted to a nursing home immediately. The respondent was indisposed and annoyed with the behavior and attitude of appellant. Despite that, he asked his brother Sh. Mohan Nainy to rush her to Vohra Nursing Home at once. She delivered a female child on 16th November 1981 at the said Nurshing Home. Thereafter she was brought back to his house by the respondent and members of his family and was very well looked after. However, on 7th January 1982, she again pushed off to her mother's house without any rhyme or reason. The respondent his mother, bids brother and sister-in-law again approached the mother of the appellant and brought the appellant back to the matrimonial home on 9th January 1982. However, on 17th January 1982, again she ran away to her mother's house after levelling a false charge that the respondent had illegitimate connections with his sister-in-law, that, thereforee, she could not live with him and she would commit suicide or she would kill her infant child and involve the respondent and other members of his family for that crime. The respondent further alleged that the brother of the appellant had sent a written complaint dated 14th November l981 to the Administrative Officer, Indian Airlines, where he was employed, levelling false charges against him, inter alia, saying that the respondent had not even informed his office about his marriage and that he did not care to look after his wife and take her out for entertainment etc.. The said letter become a topic of the day amongst his brother officers, colleagues and subordinates etc. and he fell in their esteem. Indeed he became a target of jokes which cause great mental torture and he became a heart patient and a diabetic due to the uncooperative attitude and behavior of the appellant. Still later, on or about ll the February 1982, a post-card dated 9th February 1982, which had been written in Hindi, was sent to his office by the brother of the respondent and he again leveled false charges against him and his sister-in-law. The post-card was read by not only his colleagues but also members of the lower staff like loaders, who started cutting jokes and making nasty comments on him. It became virtually impossible for him to sit in the office and he could not attend office on 15th February 1982. Thus, it was contended by the respondent that the aforesaid, acts of the appellant and members of her family amounted to cruelty as they had caused great mental torture and agony to him with the result that he remained depressed and upset all the time, both at home and in his office.

(3) The petition was resisted vehemently by the appellant who contended that the respondent had suppressed material facts. She specifically refuted all the allegations about her misconduct and misbehavior towards the respondent and members of his family. On the contrary, she asserted that the respondent was trying to take advantage of his own wrong in as much as she was subjected to humiliation and cruel treatment at the hands of the respondent and members of his family right from the inception of her marriage but she continued to suffer all the indignities heaped on her in the vein hope that better sense may prevail upon the respondent and members of his family and she would be able to lead a peaceful life. She pointed out that no woman coming of a middle-class family can afford to run to her parents house unless she is hard-pressed and meted out unbearable and inhuman treatment. According to her, the respondent used to misbehave and ill-treat her on false and lame excuses. She was even subjected to beating at his hands and she was kicked a number of times by the respondent. In particular, she averred thai the respondent used to taunt her that she was much inferior in all respects, to his sister-in-law. He would further say that he was not at all keen to marry her and he would have preferred to lead life as a free-lancer and that was the reason he married late when he had crossed forty years of age. She further stated that bhabhi of the respondent played a vital role in the management of the house-hold affairs but she was also responsible for creating disharmony in the matrimonial relations of the parties by inciting ill-feelings and breeding inferiority complex etc. in the minds of the parties. Thus, she succeeded in unsettling the married life of the couple. She vehemently asserted that she used to do all household jobs including preparation of food, tea and snacks etc. However, the respondent used to demoralise her by comparing her with his bhabhi who was dominating the household and never wanted the marital relations between the parties to be normal. She would poison the ears of the respondent by back-bitting and levelling false allegations against her. The respondent used to taunt her by telling her that the food articles prepared by his bhabhi and mother were much better than those prepared by her. This led to tense atmosphere in the house for no fault of hers. Further, according to her, the father of the respondent used to advise him not to make his own matrimonial life miserable by harassing her but the respondent never paid heed to the same. She also leveled imputation that her marriage with the respondent having been performed in a vary simple way, the respondent and members of bids family were not happy because the marriage of her younger sister was performed with pump and show. This also accentuated ill-feelings between them. As for the specific instances, she averred that she was kicked out of the house by the respondent in October 1981 and she was warned not to return to the matrimonial home. thereforee, she had no choice but to take shelter in her mother's house. However, her mother took her back to the house of the respondent after a faw days and left her there in the absence of the respondent. The respondent was annoyed over it but she tolerated his outburst that She would have to live in the house only as a maidservant as no other course was open to her. As for 13th of November 1981, she asserted that she was in advanced stage of pregnancy but even then she was kicked out by the respondent and, thereforee, she had no choice but to go to her parents' bouse. However, on 15th November 1981, she started pains of parturition and, thereforee her mother brought her back to he matrimonial home. The respondent however, refused to accompany her to the nursing home but his elder brother took compassion on her and accompanied her to Vohra Nursing Home and got her admitted there. A daughter was then born to her on l6th November 1981 but the respondent never visited the hospital even once during her stay there. After a few days, she returned to her matrimonial home and on 8th December 1981, she underwent an operation in her breast but even then the respondent did not bother about her. She pointed out that being employed in Indian Airlines Corporation the respondent was entitled to medical facility/reimbursement for .himself and members of his family but he never informed his office about his marriage with her for reasons best known to him. This, according to her, was indicative of the desire of the respondent to snap the conjugal relations. On 7th January 1982, the respondent again gave beating, to her and kicked her out of his house along with her infant daughter. However, on persuasion by her mother and other relatives and on the assurance of the respondent that he would behave properly in future, she came back to her matrimonial home on the January 1982. But, the assurance lent by the respondent proved to be short-lived as,on. the morning of 15th January 1982 she was again kicked out by him from his house along with her infant daughter. Her mother again took her back to the house of the respondent but on the very next day, viz. 17th January 1982, she was again given beating by the respondent who brought her mother to his house and then pushed out and sent her along with her mother in bare three clothes. He warned both her and her mother that she would not comeback to the matrimonial home. Feeling helpless she came back to her Mother's house along with her infant daughter. She denied having leveled and imputation against the respondent and. his bhabhi of having promiscuous relations. She also denied that any letters were sent by her brother to the office of the respondent accusing him of harshand cruel treatment to his wife or having illicit relations with his bhabhi.

(4) In his replication the respondent while controverting the averments made by the appellant, inter alia, urged that his elder brother and his bhabhi had played the role of father and mother at the time of his marriage and had performed all the ceremonies which had to be otherwise performed by his father and mother. He asserted that both of them always wished him well and wanted him to lead a happy married life. However, the appellant suffered from inferiority complex and as such she felt jealous of his bhabhi. He asserted that he had borne all the expenses of medical treatment to the appellant both at the time of her labour as well as subsequent operation in her breast

(5) The trial court framed the following issues on the pleadings of the parties : 1. Whether the respondent after the solemnisation of marriage has treated the petitioner with cruelty 2. Whether the petition is not duly verified 3. Relief.

(6) The learned Additional District Judge found issue No. 1 for the respondent and granted decree for divorce on the ground of cruelty.

(7) It is Well settled that in cases of cruelty the court has to approach the problem not by having regard to some isolated incidents alone but to the whole of marital relations of the parties. Further, the court in such cases is not concerned with a reasonable man or a reasonable woman and in has to deal with a particular man and woman before, it. As said by Lord Reid in his speech in Gollins, v. Gollins (1964) Ac 644 : 'A judge does, and must, try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty ease ever arising if both the spouses think and behave as reasonable people.'

(8) This observation was quoted with approval by their Lordships of the Supreme Court in Dr. N.G. Dastane v. M/s. S. Dastane 1981 Dmc 293 and their Lordships observed : 'The court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or an near-ideal one will probably have no occasion to go to a matrimonial Court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures.'

(9) Their Lordships then proceeded to try and understand Dr. Dastane and his wife Sucheta as nature had made them and as they had shapes their lives.

(10) In order, thereforee, to discover the nature, proclivities and idiosyncrasies of the parties we well have to conjure up and visualise for ourselves their family background placing each member of the family in porper perspective. This will furnish a mental view of the relative position of each member of the family vis-a-vis the others. As stated by Mrs. Reetu M.Nainy, wife of the elder brother of the respondent as Pw 3, the mother-in-law of the appellant was suffering from cataract and her father-in-law was also bedridden. Hence, she had and her husband had acted as parents of the respondent at the time of his marriage. In her cross-examination, she further stated that the household expenses were managed by her husband but the respondent also used to contribute. Even the appellant has not complained of much harsh behavior on the part of her parents-in-law. It would thus appear that the father and mother of the respondent were virtually non-entities in the household in the sense that they were not intermiddling with the household affairs and for that matter in the marital relations of the parties. In her written statement itself she has praised her father-in-law for having advised the respondent against making his own matrimonial life miserable. Further, it would appear that the elder brother of the respondent is the virtual head of the family and be has an effective say in family matters. However, he seems to be a responsible and considerate person. It was he who took the appellant to Vohra Nursing Home when she was in great distress on account of labour pains and was brought back by her mother late at night to her martimonial home. Indeed, the appellant has not complained of any misconduct or misbehavior either on the part of her parents-in-law or on the part of the elder borther of the respondent except saying generally that her mother-in-law too was sometimes harsh to her. So, it can be easily seen that bhabhi of the respondent was dominating the whole scene. Evidently, the respondent held his bhabhi in high esteem and he has landed her qualities of head and heart not in his petition for divorce but also in bids deposition while denouncing the appellant for her lack of interest in household chores like cooking etc. He has asserted that mother and bhabhi used to preform to duty of serving him with breakfast etc. in the morning as the appellant was a late riser. He went to the extent of saying that the appellant bluntly told him that she did not know cooking and she never cooked meals before her marriage. However, he is belied in this assertion by none other than his own bhabhi. While in the examination-in-chief she too asserted that the appellant never evinced interest in household jobs, that she used to say that she did not work even in her parents' house before her marriage and that she used to get up late in the morning and did not prepare and serve the breakfast to the respondent. However, during her cross-examination she admitted that they bad a domestic servant and an Aaya at the time of appellant's married with the respondent. The domestic servant used to took meals and do other household work. However, the domestic servant left in May-June 1981. The appellant then started doing some work and sometime even meals etc. However, she denied the suggestion that the respondent used to throw away the meals prepared by her i.e. the appellant. It would be thus seen that bhabhi of the respondent was enjoying a dominant position in the household It is the specific case of the appellant that she never loved her and he had a kind of aversion for her from the very inception of their marriage. Indeed, according to her, he could not reconcile himself to the marriage itself because he wanted to lead the life of a free-lancer rather than bonded life of a marriage person. The antipathy of the respondent towards the appellant is clearly discernible from a number of facts which have come on record. He admitted during cross- examination that he and the appellant had never seen any movie together after their marriage. He had not taken her to the house of any relative of his except her own mother. He did not inform his department about his marriage although he claimed reimbursement of delivery expenses in December 1981 or January 1982. He asserted that he had visited the Nursing Home twice after the delivery of the child on 16th and 17th November 1981. He further admitted that the marriage of the youngest sister of the appellant took place on 16th of February 1981, but he did not attend her marriage because he was running temperature on that day. Mrs. Reetu Nainy admitted in her cross-examination that the appellant underwent an operation in her breast on 8th December 1981 but the respondent was not present at the time of her operation her. However, she hastened to add that she was got admitted in the hospital by her husband and the respondent. Although the respondent denied the suggestion made to him during cross-examination that he was determined to get rid of the appellant right from the very inception of their marriage but the foregoing circumstances speak volumes for the lackadaisical and apathetic attitude of the respondent towards the appellant. So, the contention of the appellant that he used to find fault with and scold her quite often becomes quite credible. It may be that the appellant did not come up to his expectations even though she started taking interest in the household affairs after the exit of the domestic servant and lent a helping hand to her sister-in-law but that would not imply that she illtreated her husband or that she was cruel to him. Needless to say that constant denunciation of a wife by her husband would tend to create inferiority complex and loss of mental equilibrium as its necessary. concomitant. It would be more so when the husband likes food cooked by his sister-in-law and praises her qualities of heat and heart. It may be that in the instant case the respondent held his bhabhi in high esteem because of her affection for him and acting as his mother at the time of his marriage. All the same, there can be no shadow of doubt that in the circumstances which apparently prevailed in the house of the respondent the family environment was bound to be tense and even suffocating at times for the appellant. It is. thereforee, no wonder that she must have aired, her resentment and-given went to her pant up feelings sometime or the other. She may have uttered even some unpalatable words against her husband and his bhabhi but that would not mean that she doubted the conjugal fidelity of her husband or suspected her husband and his bhabhi of having promiscuous relations. She has vehemently denied having leveled such an allegation. The only occasion on which she is stated to have made this imputation was on 10th January 1982, As shall be presently seen, the household environment was very tense on the said date and, thereforee, much importance cannot be attached to any such utterance which must have been made out of sheer frustration.

(11) The antipathy of the respondent towards the appellant and his desired to get rid of her is also evident from the fact that he has deposed to certain facts against her which are beyond his pleadings. For instance, he has alluded in his deposition to an incident of 8th April, 1981 on which date the mother-in-law of his brother Mohan Nainy had come to their house on the occasion of the birth of his brother's daughter. According to him, the appellant created fuss in the house in her presence and she told her i.e. mother-in- law of his brother that she did not want to live with him i.e. the respondent and by loosening her bangles she wanted to run away from the house. However, the mother-in-law of his brother accompanied the appellant to her mother's house. She then came back to the matrimonial home on the same date. There is not a whisper to be found in the pleadings of the respondent about this episode although in the replication filed by the respondent there is specific reference to the mother-in-law of his brother doing household work then a daughter was born to his bhabhi. Further, according to respondent the appellant used to say that she cannot live with him and he should settle the matter with her. Not only that, she used to tell her mother that she had been forcibly married with him i.e. the respondent. All this beyond his pleadings. That shows the kind of animus the respondent has against the appellant.

(12) As for the alleged incident of 13th November, 1981, suffice it to say that the appellant was then in advanced stage of pregnancy. She could, thereforee, ill afford to pick up a row with the respondent or members of his family. She very much needed their help. more so when she was well aware that her own parents, not being very affluent, were persons of modest means. It was obviously for that reason that her mother brought her back to her matrimonial house late in the evening on 15th November 1981 when she was already having labour pains. Similarly, it does not stand to reason that the appellant would have left her matrimonial home of her own accord on 17th January 1982, According to the respondent on 16th January 1982, when he was away to his office the appellant picked up quarrel with his mother and sister-in-law and she accused him of having illicit relations with his sister-in-law. On his return from office in the evening, she told him that she would not live in his house and she threatened even to commit suicide. She also tried to run away from the back door but he caught hold of her. She reiterated the same allegation against him. He then called her mother and informed her of the whole episode. Then her mother was made to stay in his house on that night and she took the appellant with her on the morning of 17th January 1982. This story evidently runs counter to the averments made in the petition for divorce. The only fact stated there is that she was brought back to the matrimonial home on 9th January 1982 but again on 17th January 1982 she ran away to her mother's house after levelling false charge against the respondent that he had illegitimate connection with his sister-in-law and that she could not live with him. She further threatened that he could commit suicide or would kill her infant daughter and implicate the respondent and members of his family in a criminal, case. There is not even remote reference to the visit of the mother of the appellant to their house or her being called by the. respondent to his house or her being called by the respondent to his house on 16th January, 1982 when the aforesaid episode is alleged to have taken place. Even Smt. Reetu Nainy stated during her cross-exmination that on 17th January,1982 the mother of the appellant was called to their house because the appellant had made false allegations against them. They informed her mother of the whole episode and told her to take the appellant with her as she did not like to live there. The law is well settled that no amount of evidence can be looked at concerning a matter which is not pleaded by a party. That apart, it is pertinent to note that the appellant had specifically pleaded in her written statement that on 17th January 1982, the respondent had given her beating and had then brought her mother from her house. It was thereafter that she was driven out of the matrimonial home Along with her mother. The very fact that the respondent rushed to the court with divorce petition within a month of the aforesaid incident is indicative of intense desire on the part of the respondent to get rid of her somehow or the other.

(13) As for letter marked 'A' dated 14th November, 1981 and postcard marked 'B' dated 9th February 1982, suffice it to say that their authorship has not been duly proved. Both these letters were produced by Shri Surinder Nath Sharma, Traffic Superintendent, Indian Airlines, as Pw 1. He explained during cross-examination that letter marked 'A' was received in their office through diary and it was passed on to the Commercial Manager vide Ex. Pw 1/1. However, he admitted that no diary number was written on letter marked 'A', not was it initialled or signed by any official. As for letter marked 'B' he simply stated that the same was lying on the counter in the office. He did not know as to who had circulated the same. The respondent no doubt deposed in his examination-in-chief that letter marked 'A' was delivered in his office by Ishwar Lal, brother of the appellant. Further, according to him, letter marked, 'B' was sent by him lying on a number of counters in his office. However, he admitted that he could not identify the handwriting of his brother-in law. Both these letters were put to the appellant and her mother during cross- examination. The former categorically denied letter marked 'A' to be in the hand of her elder brother Ishwar Lal. As for letter marked *B' she stated that her brother had never written any letter to her in Hindi and, thereforee, she was unable to identify his Hindi handwriting and say if letter marked 'B' was in his hand or not. Almost identical is the reply given by Smt. Kundi Devi, mother of the appellant (PW2) during her cross-examination. Hence, the observation of the learned Additional District Judge that these letters were in the hand of the appellant's brother is based on mere conjucture and surmise. It is, no doubt, true that no browsing through these letters it would appear that the person who wrote the same must have been well conversant with the family affairs and married life of the parties but from this circumstance alone it is difficult to jump to the conclusion that the said letters must have been written by the brother of the appellant. Assuming arguments, however, that these letters were, in fact, written to the Indian Airlines by Ishwar Lal, there is neither any basis nor any justification for further presuming that he must have done so at behest or instigation of the appellant. No doubt it was a rash and even foolish act on his part to have written letter containing imputations against the conduct was behavior of the respondent towards the appellant, to his employers but the possibility of his having done so on his own cannot be ruled out. He may well be a hot-headed and impetuous person and feeling more over the turn of events which- adversely affected the married life of his sister he may not have been able to control his emotions and written the letters without realisting consequences thereof. The words 'treated the petitioner with cruelty' appearing in clause (ia) of Section 13(1) of the Act are very significant to note. They clearly emphasise that the harsh conduct of certain intensity and persistance must emanate from the spouse against whom the petition for divorce is made. It does not take within its fold the cruel treatment meted out to the petitioner by a relative of the respondent howsoever close he or she may be to the respondent unless, of course, there is evidence to warrant the inference that he or she was cruel to the petitioner at the behest or incitement of the respondent. There is no iota of evidence in the instant case to ascribe abetment or instigation to the respondent for this indiscreet act on her brother. Of course, there can be no shadow of doubt that the said tetters must have caused mental torture to the respondent by lowering him in the estimation of bids colleagues and other employees working under him. Possibly his india nation over letter dated 14th November 1981 may have. accentuated his antipathy towards the appellant and the same reflected itself in the subsequent misbehavior of the respondent towards her.

(14) The law is now well settled that to constitute a cruelty, the misconduct on the part of a spouse must amount to more than mere wear and. tear of the married life. Pin pricks alone without more will not amount to cruelty.

(15) Laziness too cannot be termed as cruelty. Irritating habits of a spouse stemming from his idiosyncrasies may get on the nerves of the complaining spouse and he or she may well resent the same but without anything more, neither the irritating indiosyncrasies nor the resentment caused By the complaining spouse can be termed as cruelty. The whole course of conduct persisted in by a spouse must be grave and weighty. In the words of Denning L.J 'If the door of cruelty were opened too wide, we should soon find; ourselves granting divorce incompetibility of temperaments This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperilled.'

(16) Reference in this contest may also be made to the observation of Avadh Behari, J. in Satinder Lat Gupta v. Swarna Lata Gupta (1981) 1 DMC 92 : '......before conduct can be called cruel, it must touch a certain pitch of severity. This has been variously descirbed as 'inexcusable, unpardonable unforgivable or grossly excessive' and 'willful and unjustifiable acts inflicting pain and misery,' but to commonest description now is 'prove and'. It is for the court to weigh the gravity; the test to be inferred from the parts of Lord Reid and Lord Peareo's in Gollins v. Gollins (1964) Ac 644, is also conduct must be such that on reasonable person would tolerate it or consider that the complainant should called upon to endure it.'

(17) It is settled law that the burden of proving cruelty lies on the petitioner and he or she has to establish beyond reasonable doubt to the satisfaction of the court the factum of cruel behavior on the part of the respondent. As already observed, generally speaking cruelty does not consist of a single isolated act but consists in most of the cases of a series of acts spread over a period of time. thereforee, we have to see whether apart from the isolated incidents of 13th November 1981, 16/17th January 1982 and the letters marked 'A' and 'B', the conduct of the appellant during her conjugal life was such which may be termed cruel. As laid down by the Supreme Court in Dastane v. Dastane (1981) 1 Dmc 293, the standard of proof to be applied in matrimonial cases is preponderance of probabilities. In other words the word 'satisfied' in section 23 would mean satisfied on a perponderance of probabilities, and not satisfied beyond a reasonable doubt. Applying the touch stop of preponderance of probabilities to the totality of the circumstances in the instant case. I have least hesitation in saying that the respondent being an ardent admirer of his bhabhi somehow developed a strong bias against/dislike for the appellant, it may be that his lackadaisical attitude towards the appellant stemmed from his general aversion for married life. All the same, there can be no shadow of doubt that the appellant was not leading a happy married life as she was denied even the ordinary pleasures which a woman would like to share with her husband. She was, thereforee, bound to feel morose and gloomy. No wonder that she may have reacted sharply and resented the day-to-day reproach scolding administered to her which tended to give an impression that she was inferior to his bhabhi in all respects. Anyway much reliance cannot be placed on the testimony of a biased husband who may well be actuated by a .strong motive in levelling false/exaggerated imputations against his wife in order to get rid of her A woman of modern times is entitled to insist that her husband treat her with dignity and self respect befitting the status of a wife and her life with the husband is peaceful and happy. Times have radically changed and modern husband can no longer expect the for bearance, patience and complete effacement of personality shown by the legandary Hindu wives of the yore, when the concept of 'Pati Parmeshwar' (husband is god) propounded by Hindi (Shatras held the field. So even if the respondent opened her lips in defiance, the blame for the same squarely lay on the respondent. Section 23 of the Act in terms forbids a petitioner in a divorce case to, in any way, take advantage of his own wrong while seeking relief on the ground that his wife is guilty of cruelty etc. Unfortunately for the appellant the learned Additional District Judge overlooked various acts of commission and omission on the part of the respondent while coming to the conclusion that the appellant was guilty of treating him with cruelty. He also seems to have overlooked that the onus of proving the same lay heavily on the husband who was the petitioner. Once letters marked 'A' and 'B' are excluded from the purview of consideration as' being not relevant or germane to the issue, virtually nothing remains on the record on the basis of which a finding of cruelty can be returned against the appellant.

(18) To sum up, thereforee, this appeal succeeds, impugned judgment and decree of the Trial Court are accordingly set aside and the petition of the Respondent for divorce is dismissed with costs throughout.

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