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Judgment
The respondent instituted a petition on 05.11.2014 invoking Section 13(ia) & (ib) of the Hindu Marriage Act, 1955. He was aged 45 years when the
petition was filed. The appellant was aged 52 years when the petition was filed.
Case pleaded by the respondent was that the maternal uncle of the appellant Shri R.S. Choradia was instrumental in the matchmaking and had
assured that the appellant was an educated girl and came from a very good family background. The family of the respondent told him that they were
interested in a good bride and desired no dowry. Talks fructified. On 17.06.1998 the marriage was solemnised.
That after the marriage the couple set up the matrimonial house in the house belonging to the respondent’s father. But the attitude of the
appellant baffled him because she never showed any inclination to have sex. Whenever the respondent initiated a discussion with the appellant
regarding her behaviour she gave evasive answers. After 15 days of the marriage she informed the respondent that she was not interested in the
marriage. At the asking of her maternal aunt, by way of an experiment, she had got married on the assurance by her maternal aunt that whenever she
would desire a divorce could be obtained. The respondent further pleaded that for 2 to 3 months he kept quiet and did not share this with anybody. He
took courage to inform the maternal uncle of the appellant who was instrumental in the match-making. As per the respondent probable reason for
appellant’s behaviour was that she was residing alone at Jaipur before marriage and was in service and thus she had got used to a life where she
could not adjust with others. This belief was founded on the fact that the respondent saw during the marriage ceremonies that appellant’s parents
and brother were remaining in the background. That so aloof was the attitude of the appellant that not only she would not have sex with him but she
would not even mingle with his parents or relatives whenever the relatives visited the house. She started misbehavingwith his parents. She would
never accompany him outside. She would tell him that she had no concern with anybody in the house. It hardly mattered to her whether anybody was
indifferent towards her. She stated that she had no desire to take help from anyone. That one day, by way of initiating a dialogue, when he asked the
appellant would she accompany him to his village if his grandfather died, she replied that under no circumstances would she accompany him to the
village.
Further case pleaded was that so indifferent was the attitude of the appellant that she would keep awake till 2.00 in the night which would disturb
his sleep because the light used to be on. She would get up at 8.30 and leave for work. She would never enter the kitchen to cook. She never prepared
tea for him. She would keep her salary with herself and contribute not a penny nor would spend a penny in the house. The respondent tried to counsel
the appellant. Her response was that she would have no physical relations with him and under no circumstance would ever take the responsibility of a
child. Returning from work at about 3.30 PM in the late afternoon she would remain in her room till 7.00 PM.
That after one year of the marriage without informing anybody and much less the respondent, the appellant purchased a flat at Bapu Nagar. In spite
of being the only son of his parents he agreed to shift to said flat hoping that away from his parents the attitude of the appellant may change. But this
did not happen. The appellant would prepare meal only once a day and because of this he had to take the second meal at his parents house. Whenever
he would return to the flat the appellant would remain indifferent.
He took a decision in March, 2003 (the year being typed wrong in the petition and it should be 2000) to shift to Saudi Arabia and thus he shifted to
Saudi Arabia. At the asking of the appellant he arranged a visa for her to visit him in Saudi Arabia. She visited him in Saudi Arabia but did not allow
any physical relationship. She visited him abroad four times on a visitors visa but did not have physical relationship with him. In the year 2007 the
couple decided to adopt a girl child. Hoping that with a child coming in the family things may improve they adopted a baby girl. But the attitude of the
appellant never changed. She took no care of the baby girl named Palak. His parents had to look after the girl. The appellant never took any interest in
the education of the child.
The pleadings terminate with the assertion of the fact that for over two years preceding filing of the petition the appellant had abandoned the
company of the respondent, thus case was made out to grant divorce on ground of cruelty and desertion.
From the pleadings of the petition filed by the respondent cruelty alleged would be on account of denial of sex; on account of total indifferent
behaviour towards the respondent and his parents which included abusive language towards parents of the respondent and separating the respondent
from his parents; lastly denial of participating in the social life of the respondent.
In the written statement filed, the appellant admitted the marriage between the couple on 17.6.1998 and that her maternal uncle Shri R.S.Choradia
played a leading role in the matrimonial alliance. She admitted that after the marriage the couple set up their matrimonial house in the residential house
owned by the respondent's parents. She denied that her attitude towards the parents of the respondent was indifferent. She denied that there was no
physical relationship between the couple. She denied having ever told the respondent that for her, marriage was an experiment or that her maternal
aunt assured her that whenever she desired a divorce would be managed. She pleaded that before marriage she was residing with her parents, her
brother and her sister and was thus used to life-style in a family. She pleaded that because she got a job in Rajasthan University at Jaipur, she shifted
to Jaipur. She pleaded that her parents, her brother and her sister as also other relatives used to regularly visit her at Jaipur and thus it was wrong to
allege that she was used to a personal life style. She pleaded that her in-laws had a grievance of inadequate dowry being given by her parents and that
her mother-in-law would insist that she should hand over the salary which she received every month to her. She pleaded that she used to participate in
all religious and social functions in the house of her in-laws. She pleaded that before leaving for work she used to finish all household chores. On
return she used to help her mother-in-law in household work.
She pleaded indifference on the part of her in-laws towards her. She pleaded that the atmosphere in the house of her in-laws was sicking. She denied
that the respondent ever quizzed whether she would participate in the rituals if his grand-father died. She pleaded that many a times she went to the
ancestral village of her husband to attend social functions. She pleaded that when respondent’s grand-father died she participated in the religious
ceremonies. She pleaded that she was a lady with ordinary habits. She would get up in the morning at 5.30 AM and sleep by 10.30 PM. She pleaded
that she used to prepare breakfast in the morning for the entire family as also pack lunch for her husband. She would leave for office at 9.00 AM in
the morning. She pleaded that the first wife of her husband had committed suicide due to mental stress created on her in the matrimonial house.
Her husband was facing trial and this was the reason why he was mentally stressed. She pleaded that inspite of physical relationship between the
couple a child not being born was the wish of the Almighty and she was not responsible for the same. She admitted having purchased a flat in Jaipur
but gave reason for the same; being the hostile attitude created by her in-laws in the matrimonial house. She pleaded that after the couple shifted to
the flat which she purchased, her husband left India without informing her. She pleaded that she used to cook food in the flat where the couple shifted
in Jaipur, but made a grievance that many a times her husband would not eat food in the house and went to the house of his parents to eat food. She
admitted having visited her husband abroad on four occasions. She admitted that the couple adopted a girl child in the year 2007. She denied that she
did not take care of the adopted girl. She asserted that she loved the adopted girl. But she admitted that the adopted girl was currently living with her
in-laws. She pleaded that if her husband obtained a permanent visa for her she was ready to join consortium with him.
At the trial the respondent examined himself as AW1 and deposed facts in sync with his pleadings. Relevant would it be to note that the
respondent was cross-examined with reference to the death of his first wife. He denied that his first wife committed suicide due to harassment in the
house of her in-laws. He admitted during cross-examination that in the flat purchased by his wife at Bapu Nagar in Jaipur they stayed together only
for 3-4 months and that the entire expenses for running the kitchen and the household was borne by his wife. He stated during cross-examination that
the entire expenses for the education of the child which the couple adopted was borne by her. He admitted that he left for Saudi Arabia without
informing his wife. He admitted that when he shifted to Saudi Arabia his wife was having a temporary job, but stated that she was not ready to live
with him permanently in Saudi Arabia. It is also relevant to note that he was not cross-examined with reference to his testimony that appellant denied
sex to him from the first day of marriage.
The respondent examined his father Nemi Chand Jain as AW2, who deposed facts in favour of his son. Relevant would it be to note that during
cross-examination he admitted that his daughter-in-law used to participate in the social and religious functions held in his family.
The appellant examined herself as NAW1 and relevant would it be to note that she deposed facts in support of her pleadings and denial of the
facts in her pleadings vis-a-vis the facts pleaded by her husband in the petition seeking divorce. Relevant would it be to highlight that during cross-
examination she admitted that she never paid the fees of the girl child which the couple had adopted. She also admitted that she did not accompany the
child to the school on the day of admission or thereafter. She denied the suggestion that she was reluctant to have physical relationship with her
husband, but admitted the fact that her husband had told her maternal uncle that she was not maintaining any physical relationship with her husband.
The appellant examined her brother Azad Kumar Jain as NAW2, who deposed facts in favour of the appellant.
Vide impugned judgment dated 28.11.2016 the learned Judge, Family Court has, and we refer to paragraph 16 of the impugned judgment,
highlighted that during cross-examination the appellant did not controvert the testimony of the husband that there was no physical relationship between
the couple because the appellant did not permit the same. The learned Judge, Family Court has highlighted that the assertion of the respondent that he
told said fact to the maternal uncle of the appellant was not only not denied by the appellant but was specifically admitted by her during cross-
examination. The learned Judge has therefore reasoned in paragraph 17 of the impugned decision that it is a case of denial of sex by the appellant.
Referring to case law in paragraph 18, the learned Judge has held that denial of sex in a marriage constitutes mental cruelty.
In paragraph 21 of the impugned judgment, the learned Judge has highlighted that the evidence establishes that the appellant purchased a flat at
Bapu Nagar in Jaipur and compelled her husband who was the only son of his parents to leave his parents and therefrom a conclusion has been drawn
that said act also amounted to cruelty.
In paragraph 22 of the impugned decision the learned Judge, Family Court has held that the respondent could not establish that the appellant did not
participate in the social and religious ceremonies in the house of her in-laws and on said count held that on this aspect of the pleadings by the
respondent cruelty has not been established.
On the ground of desertion the learned Judge has held that evidence establishes that the respondent left the matrimonial house after he found a job
in Saudi Arabia and did not inform his wife about the same and thus, it was not a case where the appellant deserted the respondent.
Holding cruelty in the form of denial of sex and forcing the husband, who was the only son of his parents, to leave his parents amounted to cruelty,
decree of divorce on ground of cruelty has been granted.
Learned Senior Counsel for the appellant urged that there being no specific incidence of cruelty pleaded, as held in the decision reported as
2010(14) SCC 301 Gurbux Singh v. Harminder Kaur the petition seeking divorce had to be rejected. Learned Senior Counsel argued that the approach
by the learned Judge, Family Court to decide the issue with reference to no cross-examination of the respondent on his statement on oath that the
appellant denied sex to her husband was not correct keeping in view the fact that in her testimony the appellant had deposed that there was sexual
relationship between the couple.
It is settled law that there can be no comprehensive definition of what constitutes mental cruelty because human mind is extremely complex and
human behaviour is equally complicated. The concept of cruelty differs from person to person depending upon upbringing, level of sensitivity,
educational qualifications, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and the
value system of the parties. Yet, some standards have been evolved by the Courts to determine what would be cruelty. The approach by the Courts is
to consider the complete matrimonial life of the parties and then see within the broad parameters of cruelty whether it is impossible for the parties to
live together with each other. Where coldness or lack of affection, indifference and neglect reaches a degree that it makes the married life of other
spouse absolutely intolerable it would amount to cruelty. Total departure from normal standard of conjugal kindness causes mental injury to the other
espouse.
The Courts have emphasized that where there has been a long period of continuous separation it would be fair to conclude that the matrimonial
bond is beyond repair and the marriage has become a fiction, though supported by a legal tie. By refusing to sever the tie, the law in such case does
not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations it may
lead to mental cruelty.
Keeping the aforesaid principles in mind, it assumes importance that the respondent categorically pleaded disinclination by the appellant to have
sex with him. He pleaded in the petition that this fact was told by him to the maternal uncle of his wife soon after she got married. Appellant in her
pleadings admitted that her husband did tell her maternal uncle that she was not having sex with him. She admitted the same during cross-examination
in her testimony.
Sex between the husband and wife is an intimate relationship and nobody ordinarily shares ones sexual experience with relatives. That the
respondent made a grievance on this score to the maternal uncle of the appellant is a fact which is extremely relevant. It shows the contemporaneous
conduct of the parties and is good proof of assertion by the respondent that the appellant was denying sex with him.
To counter this fact learned Senior Counsel for the appellant urged that if this was so, what propelled the respondent to four times obtain visitors
visa for his wife to join him in the foreign shores?
Now, the respondent was not cross-examined on this aspect i.e. why he obtained visitors visa for his wife to join him four times in the foreign
shores. He was the best person who could have answered the same. One possible reason is a long rope given by the respondent to the appellant with
the hope that the marriage could be salvaged.
Undisputedly, the couple have shown a behaviour which somewhat confuses a reasonable person. The evidence establishes that after the
marriage, the respondent left for Saudi Arabia in the year 2000. The appellant visited him in Saudi Arabia and lived with him from 13th June, 2001 to
18th August, 2001. Thereafter, in Muscat from 11th May, 2003 to 13th July, 2003. At Dubai from 8th May, 2005 to 5th July, 2005 and 23rd December,
2006 to 14th January, 2007. Thereafter, in UAE from 12th May, 2007 to 30th June, 2007.
Notwithstanding the relationship between the couple being stressed it is obvious that they were trying to find a meaning in life. They found one.
They adopted a girl child in the year 2007. But strangely the girl child never lived with either of them. The adopted child was brought up by foster
paternal grand parents. It is obvious that the couple took floating decisions without anchoring the same. Their belief that child would bond them was
belied.
As noted above the marriage was solemnized on 17.6.1998. The couple separated by March 2000 when the respondent left for Saudi Arabia. For
over 18 years the couple are living separately except for the brief period, as noted above, when the appellant visited the respondent in the foreign
shores. The marriage is dead. As a matter of fact, it is a case where the marriage never took of. The weight of the evidence in the instant case is in
favour of the finding returned that there was denial of sex by the appellant to the respondent from the inception of the marriage. The probable reason
thereof is the seven years age gap between the couple. The appellant was 36 years of age when she got married. The respondent was aged 29 years.
We find no merit in the appeal. The same is dismissed.