……….. Mrs. Juhi Kumari, D/o Sri Surendra Prasad Sah, W/o Sri Rabindra Kumar, R/o v. …
Case Details
First Appeal No. 155 of 2019 ……….. [Against the judgment and decree dated 16.03.2019 (decree signed on 29.03.2019) passed by Sri Nalin Kumar, learned Principal Judge, Family Court, Dumka in Original Suit No. 44 of 2018] ……….. Mrs. Juhi Kumari, D/o Sri Surendra Prasad Sah, W/o Sri Rabindra Kumar, R/o Shiv Pahar Chowk, Dumka, P.O. & P.S. Dumka Town, District- Dumka, Jharkhand. Present Address- C/o Sri Surendra Prasad Sah at Baghnocha, Rakhabani, P.O. & P.S.- Dumka Town, District- Dumka, Jharkhand Versus … … Appellant Mr. Rabindra Kumar, S/o Shri Bishwanath Sah, R/o Shiv Pahar Chowk, Shiv Pahar Road, P.O. Dumka, P.S.- Dumka Town, District- Dumka, Jharkhand … ... Respondent ……….. P R E S E N T HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE DEEPAK ROSHAN ……….. For the Appellant For the Respondent : Mr. Rajiv Sinha, Advocate : Mr. R.S. Mazumdar, Sr. Advocate Per Rongon Mukhopadhyay, J. C.A.V Judgment 01/10/2024 ……….. Heard Mr. Rajiv Sinha, learned counsel for the appellant and Mr. R.S. Mazumdar, learned Senior Counsel for the respondent. 2. This appeal is directed against the judgment and decree dated 16.03.2019 (decree signed on 29.03.2019) passed by Sri Nalin Kumar, learned Principal Judge, Family Court, Dumka in Original Suit No. 44 of 2018, whereby and whereunder the suit preferred by the respondent herein u/s 13 (1)(ia) and (ib) of the Hindu Marriage Act, 1955 has been allowed and the marriage between the appellant and the respondent has been dissolved and the respondent has been directed to make payment of permanent alimony to the appellant of an amount of Rs. 10,00,000/-. 3. For the sake of convenience both the parties are referred to in this judgment as per their status before the learned trial court. Page | 1 4. The plaintiff husband (respondent herein) had filed a suit u/s u/s 13 (1)(ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution of his marriage with the defendant (appellant herein), in which, inter alia it has been stated that the marriage between the plaintiff and the defendant was solemnized on 11.03.2015 as per Hindu rites and customs. The marriage was solemnized by suppressing material facts as a result of which the marriage till date has not been consummated. In the first night of the marriage on 13.03.2015 the defendant had disclosed that the marriage was solemnized against her will as she wanted to marry Rahul but only on account of the pressure created by the parents of the defendant her marriage was solemnized. The defendant had further disclosed that a love affair was going on with Rahul for the last four years and all types of relations have been established between them and due to her adamant attitude she had refused to
Legal Reasoning
cohabit with the plaintiff. It has been stated that on 15.03.2015, she had pressurized the plaintiff to give her divorce, at which, the plaintiff was compelled to call the mother of the defendant who refused to intervene and asked the plaintiff to sort out the matter at his own level. On 18.03.2015, the defendant wanted to talk to Rahul and she had threatened to commit suicide if she was not permitted so and this resulted in the defendant being kept at her parental house. After about three months the defendant was brought to her matrimonial house in the hope that the defendant will lead a peaceful marital life but such expectations proved futile as the defendant was caught red handed talking on her mobile with Rahul. The defendant had once again voluntarily left her matrimonial house for her parental house. It has been stated that in February, 2016 the plaintiff had organized a family trip to Puri, in which, the defendant also accompanied the plaintiff and his family members and in the said tour the mother of the plaintiff had requested the defendant to have a child but the same was answered by referring to the relationship the defendant was having Page | 2 with Rahul. It has been alleged that in February, 2016 the defendant without the consent of the plaintiff and without any prior intimation had left for her parents‟ house and had also taken with her ornaments and other valuable articles. Despite such behavior on the part of the defendant the plaintiff made every effort to bring back the defendant to her matrimonial house but of no avail and even the uncle of the defendant had demanded an amount of Rs. 40,00,000/- to facilitate the divorce between the plaintiff and the defendant. Since such demand was not fulfilled by the plaintiff, the defendant and her parents‟ under a conspiracy had trespassed into the quarter of the plaintiff at Chakardharpur on 27.07.2016 and apart from using abusive language the plaintiff was also subjected to assault and his mobile phone etc. were taken away. The information with respect to the said incident was given by the plaintiff to the Superintendent of Police, West Singhbhum and the other officials of the Railways. The defendant in order to teach a lesson to the plaintiff had lodged complaints on 27.07.2016 and 28.07.2016 before the employer of the plaintiff urging them to take action against the plaintiff. The defendant had also instituted a criminal case before the Dumka (Mahila) P.S. against the plaintiff and his parents‟ for which the plaintiff had to remain in custody for 20 days. The information about the custody of the plaintiff was given to the Senior Railway officials by the defendant which resulted in the plaintiff getting suspended from service. It has been stated that in compliance to the order passed in A.B.P. No. 102/2016 the plaintiff along with his father had gone to the house of the defendant on 11.10.2016 and requested for her bedai but they were abused and ousted from their house by the defendant and her parents. The defendant in order to get the plaintiff into custody had also filed an application for cancellation of bail. It has also been stated that the defendant is getting monthly maintenance pursuant to a case being Criminal Misc. Case No. 80 of 2016 instituted by her. The defendant had instituted a case for Page | 3
Decision
domestic violence which was disposed of and a proceeding was also initiated at her behest u/s 107 Cr.P.C. Apart from these cases a criminal complaint was also lodged against the plaintiff being PCR Case No. 219/2017. On 18.03.2017 the defendant and her parents‟ had assaulted and abused the plaintiff and his father at Dumka Civil Court premises. At the instance of the defendant her father has also instituted a case against the father of the plaintiff which has been registered as Dumka Town P.S. Case No. 20/2018. The defendant in order to lower the prestige and reputation of the plaintiff had got published several news in the daily newspaper. A case was also instituted before the State Women‟s Commission numbered as 343/2017. It has been stated that right from time of inception of the marriage there has been no conjugal relationship due to the reluctance on the part of the defendant and her behavior towards the plaintiff and his parents‟ were humiliating and she had left her matrimonial house without any reasons and she is residing at her parents‟ house since long. 5. The defendant on being noticed had appeared and filed a written statement, in which, the allegation leveled in the plaint has been denied. It has been stated that the plaintiff and the defendant after their marriage had stayed together and physical relationship between them were also established. The defendant had happily accepted the plaintiff as her husband and there was no pressure put upon her by her parents to solemnize marriage with the plaintiff. It has been stated that Rahul Kumar is a figment of imagination of the plaintiff in order to sever his ties with the defendant. The defendant for the first time after marriage had gone to the house of her parents‟ on 03.04.2015 and had returned back to her matrimonial house on 07.04.2015 and thereafter she had gone to Chakardharpur as the plaintiff was suffering from some ailment. In the family tour organized by the plaintiff she and the plaintiff had shared the same bed where they cohabited. Both the Page | 4 plaintiff and the defendant decided to have a child after 2-3 years since both were very young. In February, 2016 the defendant was sent back to her parents‟ house by the plaintiff and his family members after keeping all her ornaments and other valuables with them. The plaintiff and his father had not come to the house of the defendant for bedai and it is totally in correct to say that a demand of Rs. 40,000,00/- was made for getting a divorce. The defendant and her parents had gone to the quarter of the plaintiff at Chakardharpur since no one had come to take the bedai of the defendant but the plaintiff on seeing them left his quarter and ultimately after a few days a written complaint was given to the DRM at Chakardharpur. It has been stated that the defendant has come know that the plaintiff is inclined to solemnize marriage with the sister of his sister-in-law. The plaintiff had not taken the bedai of the defendant in spite of the order passed in the anticipatory bail application. 6. Based on the pleadings of the parties the following issues were framed for adjudication: (i) Is the suit maintainable in its present form? (ii) Has the petitioner got valid cause of action for the suit? (iii) Whether the respondent/wife Juhi Kumari has deserted petitioner/husband Rabindra Kumar and they were living separately since more than two years? (iv) Whether the respondent/wife Juhi Kumari had treated petitioner/husband with cruelty from the date of their marriage? (v) Whether matrimonial relationship between the petitioner and the respondent has deteriorated to the extent that it is impossible for the petitioner to live with the respondent without mental agony, torture and distress? Page | 5 (vi) Whether the petitioner is entitled to get decree of divorce? 7. The plaintiff has examined two witnesses in support of his case including himself. 8. P.W.1 (Rabindra Kumar) is the plaintiff who has stated that his marriage was solemnized with the defendant on 11.03.2015 as per Hindu rites and customs at Dumka. On the occasion of “suhagraat” on 13.03.2015 the defendant had clearly stated on account the pressure created upon her by her parents‟ she had agreed to solemnize the marriage since she had a love affair with Rahul for the last four years and she had refused to consummate the marriage. He had kept within himself the mental agony suffered by him and on 15.03.2015 the defendant had wanted a divorce and he was compelled to confide the same to the mother of the defendant who showed her disinclination in interfering in such matters and left it upon him and the defendant to resolve such issue. He has stated that on 18.03.2015 the defendant expressed her desire to converse with Rahul and if she was not allowed she had threatened of committing suicide. He was forced to send the defendant to her parents‟ house where she resided for three months after which she was brought back to her matrimonial house in the hope that she would lead a peaceful marital life but the same did not materialize and the defendant was found conversing with Rahul and she did not pay heed to his objection, rather she left for her parents‟ place. He has stated that due to the torture committed by the defendant he was mentally devastated but in the hope that things will turn for the better he arranged a tour along with his family and the defendant to Puri and during this tour his mother expressed her desire to the defendant to have a baby at which the defendant called up Rahul and sought permission from him whether to establish physical relationship with him (plaintiff) or not. He had disclosed the entire episode to the parents of the defendant and had also expressed his Page | 6 mental anguish to them. After he returned from Puri he came back to Dumka and thereafter went to his workplace at Chakradharpur. In February, 2016 the defendant on the pretext of attending the marriage of her cousin sister had taken away all her ornaments and her valuables and went to her parental place. In March, 2016 he had requested the defendant to return back to her matrimonial house but she flatly refused. The uncle of the defendant, had demanded Rs. 40,000,00/- for giving him a divorce. He has stated that even his father had requested the defendant to come back but he was humiliated by her. On 27.07.2016, the defendant, her parents‟ and some antisocial aliments had forcibly entered into his official quarter at Chakradharpur and abused and assaulted him and snatched away his mobile and other articles which was informed by him to the Superintendent of Police, West Singhbhum. The defendant had written two letters to the Senior Divisional Railway Manager, Chakradharpur to initiate disciplinary steps against him. A criminal case was also instituted by the defendant u/s 498A/420 of the IPC, in which, he had to remain in custody for 20 days. The defendant had informed the senior officials of the Railways about he being taken into custody which led to his suspension. He was granted bail against which the defendant had moved the High Court for cancellation of bail. The defendant had also lodged a case for maintenance, in which, he is making a monthly payment of Rs. 15,000/-. The defendant had also made a complaint of domestic violence against him, a complaint before the CJM, Dumka, a proceeding u/s 107 Cr.P.C. and Dumka Town P.S. Case No. 20/2018 against his father. On 18.03.2017, he and his father were abused by the defendant and her mother when they had gone to the Court for talks on compromising the matter. He has also stated that the father of the defendant had instituted a Money Suit against his father. The defendant had also made a complaint to the State Women‟s Commission as well. The Page | 7 defendant has mentally tortured him in various manners from the time of the marriage and throughout their marital life. In cross-examination, he has deposed that Rahul Kumar is the boyfriend of the defendant. He had never tried to gather any information about Rahul Kumar. He had confided to his father that even after 5-6 days of the marriage the defendant has not allowed him to establish physical relationship with her. He had asked for the mobile number of Rahul from the defendant so that he can speak with Rahul. In the last week of December, 2015 the defendant had tried to commit suicide and he was a witness to the said episode. He has deposed that at the time of marriage the defendant was studying. When he had gone to Puri he had taken a big room in the Hotel where all of them stayed together. In Puri also both had a quarrel since the defendant was talking to Rahul and he had never forced the defendant to share the mobile number of Rahul with him. He had made attempts to bring the defendant to his quarter at Chakradharpur but she never agreed. He had not instituted any case for bedai before the competent court. He has deposed that he has been mentally tortured by the defendant to such an extent that it is not possible for him to resume his marital ties with the defendant. 9. P.W.2 (Sanjay Kumar) is the brother-in-law of the plaintiff who has stated that from the first night of the marriage a rift was created between the plaintiff and the defendant. The defendant had stated that her marriage was solemnized against her wishes and that she has a love affair with Rahul from prior to her marriage. Within 3-4 days of marriage the defendant had wanted a divorce from the plaintiff. The plaintiff was suffering mental agony due to the behavior of the defendant but the same did not have any effect on her. In February, 2016 the defendant had left her matrimonial house along with her ornaments and valuables and since then she is staying at her parental house. The defendant was requested several times to resume her marital life Page | 8 with the plaintiff but she refused. The uncle of the defendant namely, Madhukant Sah had demanded an amount of Rs. 40,000,00/- from the plaintiff for the purpose of getting divorce and when the same was not fulfilled a false case was instituted by the defendant in August, 2016. The defendant had also communicated with the high officials of the Railways in an effort to get the plaintiff dismissed from service. It has become impossible for the plaintiff to continue with his marital ties with the defendant. In cross-examination, he has deposed that he had not found any fault with the defendant at the time when he had gone to see the defendant prior to the marriage. He has come to know that the defendant had gone with her parents to the workplace of the plaintiff but the plaintiff had left them and fled away. It is in correct to say that the plaintiff wants to divorce the defendant due to his illicit relationship with the sister of his sister- in-law. 10. 11. The defendant has examined herself as a witness. R.W.1 (Juhi Kumari) has stated about solemnization of her marriage with the plaintiff on 11.03.2015 as per Hindu rites and customs. For the first time after marriage she had come to her parents‟ place on 03.04.2015 and returned back to her matrimonial house on 07.04.2015 and thereafter she had gone to Chakradharpur to the workplace of the plaintiff. On 12.06.2015, she came back to Shivpahar with her husband and on hearing the ailment of her husband she had once again gone to Chakradharpur on 22.06.2015 and on 27.06.2015 she had returned back to Shivpahar. She had thereafter gone to Puri along with her husband and in-laws and had stayed in a room at Puri with the plaintiff. After returning from Puri, the behavior of her in- laws towards her changed and they started demanding an amount of Rs. 4,00,000/- and she was also subjected to torture. In the year 2016 on the occasion of Holi her husband had come to her Page | 9 parents‟ place and inquired from her as to whether she had demanded an amount of Rs. 4,00,000/- from her father or not. When she replied in the negative the plaintiff slapped her and without any information left for Chakradharpur and cut off all communications with her. She had thereafter gone with her parents‟ on 27.07.2016 to Chakradharpur to the Railway quarter of her husband but within 10-15 minutes her husband left the place without any information. After a few days she was forced to return back to Dumka. During her stay at Chakradharpur she found some SIM Cards and some documents which created a doubt that her husband was having illicit relationships with other females. She has stated that her husband had falsely alleged about her relationship with one Rahul who is a fictitious character created by her husband in order to facilitate his desire in getting a divorce from her. She has further stated that whenever after marriage she had stayed with her husband physical relationship was established between them. She had never committed cruelty upon her husband. It is true that she had filed a case u/s 498A IPC but she never desired to send her husband and parents-in-law to jail. The plaintiff had created a drama that the dispute has been settled on the guise of which bail was granted to his parents‟ but the plaintiff went to jail and she had made every efforts to get him released but her husband did not heed to her advice. She has always tried to maintain normal marital relationship and she does not want that the marriage should be dissolved. In cross-examination, she has stated that initially she had made a complaint on 27.07.2016 in the office of the plaintiff and on 28.07.2016 a complaint was made before the DRM. She had also made a complaint to Mahila P.S. that the plaintiff is not taking her back to her matrimonial house. She had filed a case u/s 498A IPC against her husband and thereafter a case for maintenance as well as a case for restitution of conjugal rights. She has deposed that she is in her parental house since the time of Page | 10 Holi, 2016 as her husband has not taken her back to her matrimonial house. In the case of maintenance the plaintiff is making payment of Rs. 15,000/- per month in terms of the order of the Court which she is accepting. When she had gone to Puri along with her husband, parents-in-law, brother-in-law and sister- in-law all had stayed in a single room. 12. It has been submitted by Mr. Rajiv Sinha, learned counsel for the appellant/defendant that the plaintiff has been unable to prove the issue of cruelty and desertion but the learned trial court in a hurried manner had decided the core issues in favour of the plaintiff. On the point of cruelty, learned counsel has submitted that mere filing of a plethora of cases within a short span of time would not tantamount to inflicting cruelty as the backdrop leading to filing of such cases has to be considered as a predominant feature and in this particular case despite the best efforts made by the defendant to resume her marital life with the plaintiff the same has been stonewalled by the plaintiff for an oblique purpose. It has been submitted that it was the plaintiff who had initiated the filing of cases by referring to a purported incident which had occurred on 27.07.2016 at Chakradharpur and as per Exhibit-J such complaint was not found to be trustworthy. There are four substantive cases filed by the defendant and none of the cases have been found to be false. Mr. Sinha, has referred to the Railway pass and the RTI information which has been marked as Exhibit-H which would indicate that the plaintiff was travelling with another female aged 21 years showing her to be his wife. The finding of the learned trial court that “invoking legal remedies by parties cannot be termed as cruelty unless the same is lodged mala-fidely and with a view to harass and torture other party” has been sought to be distinguished by submitting that there is nothing to indicate that the cases lodged by the defendant were a malicious prosecution. So far as the issue of desertion is concerned, it has been submitted by Mr. Sinha that the learned Page | 11 trial court did not arrive at a finding that there was a reasonable excuse on the part of the defendant to withdraw herself from the society of the plaintiff. It has been submitted that the Presiding Officer was already transferred as recorded in the order sheet dated 05.03.2019 and, therefore, he should not have fixed the case for judgment at the request of the parties and should have left the matter to his successor. Mr. Rajiv Sinha in the backdrop of his elaborate submissions has stated that the impugned judgment passed by learned trial court is perverse and is not based on a proper appreciation of the materials on record. 13. Mr. R.S. Mazumdar, learned Senior Counsel for the respondent/plaintiff has submitted that u/s 13 (1)(ia) of the Hindu Marriage Act, 1955 a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or by the wife on the ground that the other party has after solemnization of the marriage treated the petitioner with cruelty. Cruelty is evident when one party has so treated the other and manifests such feelings towards the other spouse which develops an apprehension in the mind that it will be harmful or injurious to stay with the offending spouse. The various criminal cases filed by the defendant and complaints made to various authorities in order to jeopardize the carreer of the plaintiff itself are indicative of the mental cruelty meted out to the plaintiff. Mr. Mazumdar has referred to the case of “Naveen Kohli versus Neelu Kohli” reported in (2006) 4 SCC 558. He has also referred to the case of “Sivasankaran versus Santhimeenal” reported in 2021 SCC OnLine SC 702 in support of his contention. Desertion is also an important facet in the entire scheme of things as it has been proved beyond any reasonable doubt that there was a willful abandonment of the plaintiff by the defendant from the evidence of the witnesses. It has been submitted that the marriage for all practical purposes has become dead and, therefore, the learned trial court was justified in dissolving the marriage between the plaintiff and the defendant. Page | 12 14. We have heard the learned counsel for the respective sides and have also perused the trial court records. 15. Issue No. (iii), (iv) and (v) are the pivotal issues which guide the destiny of the case. Issue No. (iii) relates to desertion which has been answered by the learned trial court in favour of the plaintiff and against the defendant. It is an admitted fact that the defendant has consistently stated about the willingness on her part to resume the marital ties with the plaintiff and the various complaints made to the authorities were presumably with an intention to restore her shattered marital life. The defendant had instituted a plethora of cases including a case of maintenance and a criminal case u/s 498A of the IPC on account of the demand of dowry and torture meted out to her. The intention of the defendant is further enhanced on account of the suit preferred by her u/s 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights with the plaintiff. The learned trial court has considered the filing of the suit for restitution of conjugal rights and has also given a finding in her favour which reads thus, “Similarly very fact that wife Juhi has filed OS 46/2017 on 18.04.2017 u/s 9 of the Hindu Marriage Act, 1955 for restitution of her conjugal rights in which husband has appeared and filed his show cause reply on 06.01.2018 further strengthen wife Juhi‟s stand that she is ready and willing to reside with the husband and she has to leave the society and company of her husband because her husband was not ready to live with him”. This finding of the learned trial court seems to have taken a reverse mode while relying on an observation made by the learned Sessions Judge, Dumka on 21.02.2016 in B.P. No. 514/2016 wherein the rigidity of the defendant has been noted at the time of mediation between the parties. This observation of the learned trial court in fact washes out the entire findings which have been passed on proper appreciation of the various facets of the case. A stray observation regarding the rigidity of the defendant in the mediation Page | 13 proceedings would not overwhelm the other factors of the case put forward by the defendant. In fact, the torture enunciated by the defendant in the various cases filed by her would only strengthen the fact that it was not a willful abandonment on her part but the circumstances warranted her staying at her parental place. To conclude, the issue of desertion has not been proved by the plaintiff and consequently we answer Issue No. (iii) in favour of the defendant and against the plaintiff as the findings recorded by the learned trial court is erroneous and not in accordance with the settled principles of law. 16. Issue No. (iv) is with respect to cruelty and here again the observation of the learned Sessions Judge, Dumka in B.P. No. 514/2016 vide order dated 21.02.2016 regarding the rigidity of the defendant in the mediation proceeding has been considered as one of the grounds substantiating cruelty committed by the defendant upon the plaintiff. Before we embark on the other grounds taken by the plaintiff in his quest to prove that he was subjected to cruelty by the defendant we must bear in mind that “cruelty” has not been defined in Hindu Marriage Act, 1955. The Hon‟ble Supreme Court in a plethora of judgments has encapsulated „cruelty‟ and its ever expanding features and in such context we may refer to the case of “A. Jayachandra versus Aneel Kaur”, reported in (2005) 2 SCC 22, wherein it has been held as follows: “10. The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as Page | 14 noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. to see what are 11. The expression “cruelty” has 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 is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second 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. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se Page | 15 unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. the cruelty will be established if the conduct itself is proved or admitted. (See Shobha Rani v. Madhukar Reddi.) In such cases, 12. To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the the petitioner spouse cannot be conclusion that reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.” 17. In “Joydeep Majumdar versus Bharti Jaiswal Majumdar”, reported in (2021) 3 SCC 742, it has been held as under: “10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected Page | 16 to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh v. Jaya Ghosh, this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasising that no uniform standard can be laid down and each case will have to be decided on its own facts.” 18. As per the plaintiff on 11.03.2015 the marriage was solemnized and on 12.03.2015 his hopes of having a serene marital life with the defendant was dashed on account of the revelation made by the defendant of her having a relationship with one Rahul for the last four years and that she was forced by her parents to agree to the proposal of marriage with the plaintiff. Rahul seems to have a dominant presence both in the plaint as well as in the evidence of the plaintiff who has been examined as P.W.1. The existence of Rahul has been completely denied by the defendant as according to her such character has been introduced by the plaintiff to facilitate his pursue it of seeking a divorce from the defendant. Despite the presence of Rahul in the life of the defendant, the plaintiff has highlighted his benevolent nature by taking concerted efforts in resumption of marital ties with the defendant. The plaintiff except making such bald allegations has failed to bring any supportive evidence to enhance the truthfulness of such allegation. The plaintiff has neither attempted on a serious note to obtain the phone number of Rahul nor he has given any address or for that matter he had never attempted to contact Rahul to get the issue resolved. What would be stark is the nonchalant attitude of the plaintiff regarding the existence of Rahul in the life of the defendant and this in fact emboldens the claim of the defendant that Rahul is indeed a fictitious character Page | 17 invented by the plaintiff to suit his goals. There is absolutely no discussion made by the learned trial court regarding this aspect which is surprising considering the fact that according to the plaintiff the entire chain of events was triggered by the illicit relationship the defendant was having with Rahul. In fact, such unsubstantiated allegation made by the plaintiff upon the defendant has touched upon the character of the defendant which should have been appropriately considered by the learned trial court. 19. It is the case of the defendant that there was a demand of Rs. 4,00,000/- made towards dowry by her in-laws for which she was subjected to torture and which ultimately led her to file a case u/s 498A of the IPC. Merely, because a plethora of cases have been filed by the defendant or her father such fact cannot be termed to be a malicious prosecution if such cases were not baseless and unsubstantiated. The defendant had filed a case for maintenance for her sustenance as she was residing at her parents‟ home and did not have any independent source of income. Some complaints were made regarding domestic violence to various authorities including the Senior Officials of Railways which was primarily on account of the plaintiff leaving the defendant and her parents in the lurch when they had visited the plaintiff in his workplace. The defendant has also alleged about the plaintiff availing his railway pass and travelling with some other lady projecting her as his wife. The various complaints made can be construed to be a desperate effort made by the defendant to resume her marital life with the plaintiff. The suit for restitution of conjugal rights filed by the defendant would further enhance the intention of the defendant. The learned trial court has not made an in-depth analysis of the evidence on record and has based its findings on unsubstantiated allegations. In fact, the tenor of the evidence of the plaintiff does not suggest that he had ever made genuine attempts to restore normalcy in the relationship and from Page | 18 the time of the marriage his approach seems to be with a preconceived notion of getting rid of the defendant. 20. Mr. Mazumdar, learned Senior Counsel for the plaintiff/respondent has relied upon the case of ““Naveen Kohli versus Neelu Kohli” (supra), wherein it has been held as follows: “74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, the it may fairly be surmised matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. that 85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality. 86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to Page | 19 immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.” 21. In the case of “Sivasankaran versus Santhimeenal” (supra), it has been held as follows: “20. We are conscious that the Constitution Bench is examining the larger issue but that reference has been pending for the last five years. Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of 21. However, the aforesaid is not the only issue under which the given facts of a case can be examined. No doubt, the courts below did not find adequate material to come to the conclusion that the appellant was entitled to divorce on grounds of cruelty. However, there are many subsequent circumstances which have arisen the present case which necessitated the examination of this aspect. The question, thus, is whether the respondent's conduct after the initial trigger for divorce amounts to mental cruelty. On the basis of material on record, we endeavour to deal with this aspect and, in that behalf, we notice the following: in the 22. On having succeeded before first appellate court, the respondent lodged a criminal complaint against the appellant under Section 494IPC even though her appeal was pending before the High Court. She sought to array and accuse even the persons who had attended the second marriage. The High Court quashed the criminal proceedings in terms of the order dated 18-2-2019.” 22. As we have discussed above the issue of mental cruelty has not been properly appreciated by the learned trial court and consequently, we answer Issue No. (iv) in favour of the defendant and against the plaintiff. Consequent to Issue No. (iii) and (iv) having been decided against the plaintiff Issue No. (v) is also decided likewise. Page | 20 23. So far as the judgments referred to by the learned Senior Counsel for the respondent/plaintiff is concerned, they are primarily related to irretrievable break down of marriage. Though it is an accepted fact that the parties are living separately since long but there being absence of irretrievable break down of marriage as one of the grounds seeking divorce in the Hindu Marriage Act, 1955 it is beyond our domain to consider such grounds which we accordingly negate. 24. The learned counsel for the defendant/appellant has challenged the jurisdiction of the learned trial court in passing the judgment even when he was under an order of transfer but we refrain from making any observation in that regard. 25. This appeal accordingly succeeds and consequently the judgment and decree dated 16.03.2019 (decree signed on 29.03.2019) passed by Sri Nalin Kumar, learned Principal Judge, Family Court, Dumka in Original Suit No. 44 of 2018 is set aside. 26. Pending I.A., if any, stands closed. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) High Court of Jharkhand at Ranchi Dated, the 1st day of October, 2024. Alok/NAFR Page | 21