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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
DIVISION BENCH: Hon'ble Shri Justice S.K. Gangele &
Hon'ble Shri Justice Anurag Shrivastava
First Appeal No.611 of 2017
Smt. Tripti Gohite
Versus.
Santosh Gohite
Shri Alok Wagrecha and Shri Pushpendra Dubey, counsel for the
appellant
Shri S.K. Kashyap, counsel for the respondent.
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J U D G M E N T
(Pronounced on 09.10.2017)
As per S.K. Gangele, J:
1. Appellant has filed this appeal against the judgment and
decree dated 02.08.2017 passed in regular Civil Suit No.84-A/2016
by the Family Court, Betul. The trial Court awarded decree of divorce
under Section 13 (1) (i A) of the Hindu Marriage Act.
2. The respondent/husband filed a suit for divorce under Section
13 of the Hindu Marriage Act. He pleaded that the marriage of
respondent and appellant was solemnized on 27.04.2015 at Sadar,
Betul in accordance with Hindu rites and rituals. The appellant lived
with the respondent from 28.04.2015 to 03.05.2015, for one week.
On 03.05.2015, the respondent/husband noticed some messages
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which were obscene on her mobile no.9926746701. The number
from which the messages were came, was saved in the name of
'Dipali', then he enquired from the wife about it, she told him that
messages were send by Mr. Sumeet Jain, with whom she had love
relationship. Thereafter, the respondent made a call on mobile
no.7089894632 and the person told his name 'Sumit Jain' and also
told him that he is in love with the appellant and he wants to marry
with her.
3. On 03.05.2015, the respondent/husband informed his father
and mother about the aforesaid incident and relationship of the
appellant with Mr. Sumit Jain and after inspection of the bag of the
appellant he found one pen drive. When he opened the pendrive, he
found number of photographs of appellant and Mr. Sumit Jain.
Thereafter, on 07.06.2015 a meeting of Betul Samaj was held. In the
aforesaid meeting, the father and mother of the appellant were also
present. Members of the committee apprised about the conduct of
the appellant and due to aforesaid conduct of the appellant, the
prestige of the respondent/husband was lowered in the Society. The
appellant left the matrimonial home. Thereafter, number of notices
were sent to her. She did not reply. The appellant also lodged a
report against the family members of the respondent.
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4. Appellant/wife denied the pleadings of the respondent. She
further denied that she had any relationship with Mr. Sumit Jain, as
alleged by the respondent. She also pleaded that her father had
given sufficient dowry at the time of marriage. She pleaded that she
was subjected to cruelty by the appellant. She pleaded that
respondent had beaten her. On 05.05.2015, the respondent
promised that he would not repeat such type of behaviour and
thereafter, the meeting of the Samaj was held on 14.06.2015. The
Members present in the meeting were warned the respondent not to
repeat such behaviour. The appellant also filed a case under Section
9 of the Hindu Marriage Act for restitution of conjugal rights. The
trial Court framed two issues (i) whether the appellant had caused
practiced with the respondent and (ii) whether on this ground, the
respondent is eligible to get decree of divorce. The Court answered
both the questions in favour of the respondent/husband and granted
decree of divorce.
5. Learned counsel for the appellant has submitted that the trial
Court has committed error of jurisdiction in granting decree of
divorce. The Court has further committed error in admitting the
photographs contrary to Section 65-B of Evidence Act. In the event
of allegation that the appellant/wife had illegal relationship with Mr.
Sumit Jain, it is necessary to make Mr. Sumit Jain as party. He has
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further contended that decree of divorce on the basis of cruelty on
the basis of past conduct could not be awarded. In support of his
contentions, learned counsel for the appellant relied on the following
judgments :
[1] Anvar P.V. Vs. P.K. Basheer and others, (2014) 10 SCC 473.
[2] Jaideep vs. Rashmi Shah [2011 (2) MPLJ 680.
[3] Smt. Parvati vs. Shiv Ram another AIR 1989 HP 29
6. Learned counsel for the respondent has submitted that the trial
Court has considered all the aspects and from the conduct of the
appellant and the evidence on record it has been established that
the respondent had illegal relationship with Mr. Sumit Jain due to
which, the respondent suffered mental shock, humiliation and his
prestige was affected in the Society hence, the trial Court has rightly
granted decree of divorce.
7. Main question for consideration before this Court is that
whether the appellant had any illegal relationship with Mr. Sumit Jain
and whether she concealed the aforesaid fact. The
respondent/husband specifically pleaded in the plaint that on
28.04.2015 and 15.05.2015, the appellant had long conversations on
her mobile. On 3.5.2015 he had noticed various obscene messages
on her mobile and what’s app messages were sent from the mobile
no. 7089894632. It was in the name of 'Mr. Sumit Jain'. He had also
contacted Mr. Jain on the aforesaid mobile number and he admitted
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that he is in love with the appellant and he wants to marry with her.
He narrated all the facts to his parents and thereafter, on 7.6.2016, a
meeting of Betul Samaj was held. The same facts have been
deposed by the respondent in his statement recorded before the trial
Court.
8. On behalf of the respondent, [PW-3] Mr. Rajendra S/o Sukhram
Kodale, who was present in the meeting of Samaj, deposed that he
had seen the appellant and Mr. Sumit Jain at many occasions, they
were also travelling in a train and also on motorbike. On 7.6.2015, a
meeting of the Samaj was held at the instance of Santosh/appellant.
In the meeting family members of the appellant were present. The
appellant told the members of the Sanjaj that the respondent had
relationship with Mr. Sumit Jain and shown the photographs. The
respondent had admitted love relationship with Mr. Sumit Jain. In the
meeting, the members made a request to the respondent that if she
gives an undertaking to the effect that she would not repeat the
same, however, the respondent refused the same. Mother of the
respondent also deposed the same facts as stated by the appellant.
9. On behalf of respondent another person Mr. Radheshyam S/o
Gajanand Charpe was examined. He deposed that he is in the
business of Photography, Videography and Printing. On 8.5.2015,
Santosh Gohite had come to his shop and he had given the
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pendrive . He had developed the photographs from the pendrive
which was given by the respondent and received remuneration
Rs.1500/-. The photographs were taken out from the personal
computer. No change was made in the aforesaid photographs.
10. On behalf of the appellant, she examined herself and her
mother. She deposed that at the time of marriage her father had
given sufficient dowry. The respondent/husband had beaten and
abused her. She narrated the facts to her father and mother when
they came on 05.05.2016. They had taken back her from the house
of the respondent. A meeting of Samaj was held on 14.06.2015 to
consider the behaviour of the respondent. She denied the fact that
she had any relationship with Mr. Jain and she had received
messages on her mobile. In her cross-examination, she admitted the
fact that on 7.6.2015 a meeting of member of Samaj was held at the
instance of respondent. It was held at Pawar Samaj Sangathan,
Betul. In the aforesaid meeting, family members of the appellant and
respondent were present. She denied the photographs Ex.P.-1 to
Ex.P-73. However, she admitted the fact that her husband had a
mobile number. She specifically denied that she had ill-will or she is
not happy with her marriage. She deposed that she wants to
continue with the marriage. She further denied that she has any
illegal relationship with Mr. Sumit Jain. She admitted the fact that she
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had lodged the report against the family members of the respondent
and criminal case has been registered against them.
11. Mother of the appellant deposed that during marriage, they
had given Rs. 1,50,000/- as dowry along with other articles to the
respondent/husband. She further deposed that respondent and his
family members had been beating the respondent and they forced
her to leave the house. Thereafter, we had taken the appellant on
05.05.2015 because the respondent was not willing to keep the
appellant with him. She further admitted the fact that a meeting of
Samaj was held on 07.06.2015, it was called at the instance of
respondent and family members were present in the meeting. She
deposed that she did not remember what had happened in the
meeting. She denied the fact that appellant had any illegal
relationship with Mr. Sumit Jain as alleged by the respondent.
12. Independent witness [PW-3] was present in the meeting of the
Samaj which was convened on 7.6.2015. He verified the fact that
respondent had told the members of Samaj that appellant had illicit
love relationship with 'Sumit Jain' and she used to talk with Sumit
Jain. From the possession of appellant pendrive was recovered and
some photographs were taken out from the pendrive. His evidence is
natural and trustworthy. Appellant and her mother i.e. sole witness
examined on behalf of the appellant admitted the fact that a meeting
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of Samaj was held on 7.6.2015, it was convened at the initiation of
family members of respondent. The evidence established the fact
that there was a serious dispute between appellant and respondent.
A meeting of the Samaj was convened on the instance of family
members of respondent. The independent witness [PW-3] proved
the fact that in the aforesaid meeting the respondent narrated the
conduct and activities of the appellant. The pendrive has been
produced before the trial Court and the photographs i.e. near about
73 have been produced before the trial Court as Exhibits. In the
aforesaid photographs, the respondent has seen in intimate positions
with Mr. Sumit Jain.
13. [PW-2] deposed that he is running a studio in the name of
“Megha Digital Studio”. He had taken out 110 photographs from the
pendrive and CD and those photographs were handed over to the
respondent, he has given certificate required under Section 65-B of
the Evidence Act.
14. Learned counsel for the appellant has submitted that
photographs are not admissible in evidence because there is no
compliance of Section 65-B of the Evidence Act. In support of his
contention, learned counsel relied on the judgment of the apex Court
reported in Anvar P.V. Vs. P.K. Basheer and others, (2014) 10
SCC 473.
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15. The facts of present case are distinguishable. In the present
case, pendrive was recovered from the possession of the appellant.
It was not possible for the respondent to produce original
equipments from which photographs were taken out in the pendrive
because those photographs were taken out by the appellant herself.
The appellant has denied the same. It is not possible for the person
to forge 110 of photographs of the appellant with Mr. Sumit Jain.
Hence, an adverse inference has to be drawn against the appellant.
From the evidence produced by the respondent this fact has been
proved that appellant had illicit relationship with Mr. Sumit Jain
before marriage.
16. The apex Court in the case of Samar Ghosh vs. Jaya Ghosh
reported in (2007) 4 SCC 511 in regard to mental cruelty and has
held as under:-
40. The term "mental cruelty" has been defined in the Black's
Law Dictionary [8th Edition, 2004] as under:
"Mental Cruelty - As a ground for divorce, one spouse's course
of conduct (not involving actual violence) that creates such
anguish that it endangers the life, physical health, or mental
health of the other spouse."
41. The concept of cruelty has been summarized in Halsbury's Laws of
England [Vol.13, 4th Edition Para 1269] as under:
"The general rule in all cases of cruelty is that the entire
matrimonial relationship must be considered, and that rule
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is of special value when the cruelty consists not of violent
acts but of injurious reproaches, complaints, accusations or
taunts. In cases where no violence is averred, it is
undesirable to consider judicial pronouncements with a
view to creating certain categories of acts or conduct as
having or lacking the nature or quality which renders them
capable or incapable in all circumstances of amounting to
cruelty; for it is the effect of the conduct rather than its
nature which is of paramount importance in assessing a
complaint of cruelty. Whether one spouse has been guilty of
cruelty to the other is essentially a question of fact and
previously decided cases have little, if any, value. The court
should bear in mind the physical and mental condition of
the parties as well as their social status, and should consider
the impact of the personality and conduct of one spouse on
the mind of the other, weighing all incidents and quarrels
between the spouses from that point of view; further, the
conduct alleged must be examined in the light of the
complainant's capacity for endurance and the extent to
which that capacity is known to the other spouse.
Malevolent intention is not essential to cruelty but it is an
important element where it exits."
42. In 24 American Jurisprudence 2d, the term "mental cruelty" has been
defined as under:
"Mental Cruelty as a course of unprovoked conduct toward
one's spouse which causes embarrassment, humiliation, and
anguish so as to render the spouse's life miserable and
unendurable. The plaintiff must show a course of conduct on
the part of the defendant which so endangers the physical or
mental health of the plaintiff as to render continued
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cohabitation unsafe or improper, although the plaintiff need
not establish actual instances of physical abuse."
43. In the instant case, our main endeavour would be to
define broad parameters of the concept of 'mental cruelty'.
Thereafter, we would strive to determine whether the
instances of mental cruelty enumerated in this case by the
appellant would cumulatively be adequate to grant a decree
of divorce on the ground of mental cruelty according to the
settled legal position as crystallized by a number of cases of
this Court and other Courts.
44. This Court has had an occasion to examine in detail the
position of mental cruelty in N.G. Dastane v. S. Dastane
reported in (1975) 2 SCC 326 at page 337, para 30 observed
as under :-
"The enquiry therefore has to be whether the conduct charges
as cruelty is of such a character as to cause in the mind of the
petitioner a reasonable apprehension that it will be harmful or
injurious for him to live with the respondent."
45. In the case of Sirajmohmedkhan Janmohamadkhan
v. Haizunnisa Yasinkhan & Anr. reported in (1981) 4 SCC
250, this Court stated that the concept of legal cruelty
changes according to the changes and advancement of social
concept and standards of living. With the advancement of
our social conceptions, this feature has obtained legislative
recognition, that a second marriage is a sufficient ground for
separate residence and maintenance. Moreover, to establish
legal cruelty, it is not necessary that physical violence should
be used. Continuous ill-treatment, cessation of marital
intercourse, studied neglect, indifference on the part of the
husband, and an assertion on the part of the husband that the
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wife is unchaste are all factors which lead to mental or legal
cruelty.
46. In the case of Shobha Rani v. Madhukar Reddi
reported in (1988) 1 SCC 105, this Court had an occasion to
examine the concept of cruelty. The word 'cruelty' has not
been defined in the Hindu Marriage Act. It has been used in
Section 13(1)(i)(a) of the Act in the context of human
conduct or behaviour in relation to or in respect of
matrimonial duties or obligations. It is a course of conduct of
one which is adversely affecting the other. The cruelty may
be mental or physical, intentional or unintentional. If it is
physical, it is a question of fact and degree. If it is mental,
the enquiry must begin as to the nature of the cruel treatment
and then as to the impact of such treatment on the mind of
the spouse. Whether it caused reasonable apprehension that
it would be harmful or injurious to live with the other,
ultimately, is a matter of inference to be drawn by taking into
account the nature of the conduct and its effect on the
complaining spouse. There may, however, be cases where
the conduct complained of itself is bad enough and per se
unlawful or illegal. Then the impact or the injurious effect on
the other spouse need not be enquired into or considered. In
such cases, the cruelty will be established if the conduct
itself is proved or admitted. The absence of intention should
not make any difference in the case, if by ordinary sense in
human affairs, the act complained of could otherwise be
regarded as cruelty. Intention is not a necessary element in
cruelty. The relief to the party cannot be denied on the
ground that there has been no deliberate or wilful illtreatment.
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47. In Rajani v. Subramonian AIR 1990 Ker. 1 the Court aptly
observed that the concept of cruelty depends upon the type of
life the parties are accustomed to or their economic and social
conditions, their culture and human values to which they
attach importance, judged by standard of modern civilization
in the background of the cultural heritage and traditions of our
society.
48. Again, this Court had an occasion to examine in great
detail the concept of mental cruelty. In the case of V. Bhagat v.
D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, the Court
observed, in para 16 at page 347, as under:
"16. Mental cruelty in Section 13(1)(i-a) can broadly be defined
as that conduct which inflicts upon the other party such mental
pain and suffering as would make it not possible for that party to
live with the other. In other words, mental cruelty must be of
such a nature that the parties cannot reasonably be expected to
live together. The situation must be such that the wronged party
cannot reasonably be asked to put up with such conduct and
continue to live with the other party. It is not necessary to prove
that the mental cruelty is such as to cause injury to the health of
the petitioner. While arriving at such conclusion, regard must be
had to the social status, educational level of the parties, the
society they move in, the possibility or otherwise of the parties
ever living together in case they are already living apart and all
other relevant facts and circumstances which it is neither
possible nor desirable to set out exhaustively. What is cruelty in
one case may not amount to cruelty in another case. It is a
matter to be determined in each case having regard to the facts
and circumstances of that case. If it is a case of accusations and
allegations, regard must also be had to the context in which they
were made."
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49. This Court aptly observed in Chetan Dass v. Kamla Devi
reported in (2001) 4 SCC 250, para 14 at pp.258-259, as under:
"Matrimonial matters are matters of delicate human and
emotional relationship. It demands mutual trust, regard,
respect, love and affection with sufficient play for reasonable
adjustments with the spouse. The relationship has to conform
to the social norms as well. The matrimonial conduct has now
come to be governed by statute framed, keeping in view such
norms and changed social order. It is sought to be controlled
in the interest of the individuals as well as in broader
perspective, for regulating matrimonial norms for making of a
well-knit, healthy and not a disturbed and porous society. The
institution of marriage occupies an important place and role to
play in the society, in general. Therefore, it would not be
appropriate to apply any submission of "irretrievably broken
marriage" as a straitjacket formula for grant of relief of
divorce. This aspect has to be considered in the background of
the other facts and circumstances of the case."
50. In Savitri Pandey v. Prem Chandra Pandey reported in
(2002) 2 SCC 73, the Court stated as under: "Mental cruelty is
the conduct of other spouse which causes mental suffering or
fear to the matrimonial life of the other. "Cruelty", therefore,
postulates a treatment of the petitioner with such cruelty as to
cause a reasonable apprehension in his or her mind that it
would be harmful or injurious for the petitioner to live with the
other party. Cruelty, however, has to be distinguished from the
ordinary wear and tear of family life. It cannot be decided on
the basis of the sensitivity of the petitioner and has to be
adjudged on the basis of the course of conduct which would, in
general, be dangerous for a spouse to live with the other."
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51. This Court in the case of Gananath Pattnaik v. State of
Orissa reported in (2002) 2 SCC 619 observed as under:
"The concept of cruelty and its effect varies from individual to
individual, also depending upon the social and economic status
to which such person belongs. "Cruelty" for the purposes of
constituting the offence under the aforesaid section need not be
physical. Even mental torture or abnormal behaviour may
amount to cruelty and harassment in a given case."
52. The mental cruelty has also been examined by this Court in
Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 at
pp.716-17 [para 21] which reads as under:
"Cruelty for the purpose of Section 13(1)(i-a) is to be taken
as a behaviour by one spouse towards the other, which
causes reasonable apprehension in the mind of the latter that
it is not safe for him or her to continue the matrimonial
relationship with the other. Mental cruelty is a state of mind
and feeling with one of the spouses due to the behaviour or
behavioural pattern by the other. Unlike the case of physical
cruelty, mental cruelty is difficult to establish by direct
evidence. It is necessarily a matter of inference to be drawn
from the facts and circumstances of the case. A feeling of
anguish, disappointment and frustration in one spouse
caused by the conduct of the other can only be appreciated
on assessing the attending facts and circumstances in which
the two partners of matrimonial life have been living. The
inference has to be drawn from the attending facts and
circumstances taken cumulatively. In case of mental cruelty
it will not be a correct approach to take an instance of
misbehaviour in isolation and then pose the question
whether such behaviour is sufficient by itself to cause
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mental cruelty. The approach should be to take the
cumulative effect of the facts and circumstances emerging
from the evidence on record and then draw a fair inference
whether the petitioner in the divorce petition has been
subjected to mental cruelty due to conduct of the other."
53. In this case the Court also stated that so many years have
elapsed since the spouses parted company. In these circumstances
it can be reasonably inferred that the marriage between the parties
has broken down irretrievably.
54. In A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC
22, the Court observed as under:
"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
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
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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 to see what are 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.
12. To constitute cruelty, the conduct complained of
should be "grave and weighty" so as to come to the
conclusion that the petitioner spouse cannot be
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
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to satisfy the conscience of the Court that the relationship
between the parties had deteriorated to such 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.
13. The Court dealing with the petition for divorce on
the ground of cruelty has to bear in mind that the
problems before it are those of human beings and the
psychological changes in a spouse's conduct have to be
borne in mind before disposing of the petition for
divorce. However, insignificant or trifling, such conduct
may cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain
pitch of severity. It is for the Court to weigh the gravity. It
has to be seen whether the conduct was such that no
reasonable person would tolerate it. It has to be
considered whether the complainant should be called
upon to endure as a part of normal human life. Every
matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations,
quarrels between spouses, which happen in day-to-day
married life, may also not amount to cruelty. Cruelty in
matrimonial life may be of unfounded variety, which can
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be subtle or brutal. It may be words, gestures or by mere
silence, violent or non-violent."
55. This Court in Vinita Saxena v. Pankaj Pandit reported in
(2006) 3 SCC 778 aptly observed as under:
"37. As to what constitutes the required mental cruelty for the
purposes of the said provision, will not depend upon the
numerical count of such incidents or only on the continuous
course of such conduct but really go by the intensity, gravity and
stigmatic impact of it when meted out even once and the
deleterious effect of it on the mental attitude, necessary for
maintaining a conducive matrimonial home.
38. If the taunts, complaints and reproaches are of ordinary nature
only, the court perhaps need consider the further question as to
whether their continuance or persistence over a period of time
render, what normally would, otherwise, not be so serious an act
to be so injurious and painful as to make the spouse charged with
them genuinely and reasonably conclude that the maintenance of
matrimonial home is not possible any longer."
56. In Shobha Rani's case (supra) at pp.108-09, para 5, the Court
observed as under:
"5. Each case may be different. We deal with the conduct of
human beings who are no generally similar. Among the
human beings there is no limit to the kind of conduct which
may constitute cruelty. New type of cruelty may crop up in
any case depending upon the human behaviour, capacity or
incapability to tolerate the conduct complained of. Such is
the wonderful (sic) realm of cruelty."
57. In this case, the Court cautioned the lawyers and judges not
to import their own notions of life in dealing with matrimonial
problems. The judges should not evaluate the case from their own
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standards. There may be a generation gap between the judges and
the parties. It is always prudent if the judges keep aside their
customs and manners in deciding matrimonial cases in particular.
58. In a recent decision of this Court in the case of Rishikesh
Sharma v. Saroj Sharma reported in 2006 (12) Scale 282, this
Court observed that the respondent wife was living separately
from the year 1981 and the marriage has broken down
irretrievably with no possibility of the parties living together
again. The Court further observed that it will not be possible for
the parties to live together and therefore there was no purpose in
compelling both the parties to live together. Therefore the best
course was to dissolve the marriage by passing a decree of divorce
so that the parties who were litigating since 1981 and had lost
valuable part of life could live peacefully in remaining part of
their life. The Court further observed that her desire to live with
her husband at that stage and at that distance of time was not
genuine.
59. This Court observed that under such circumstances, the High
Court was not justified in refusing to exercise its jurisdiction in
favour of the appellant who sought divorce from the Court.
60. "Mental cruelty" is a problem of human behaviour. This
human problem unfortunately exists all over the world. Existence
of similar problem and its adjudication by different courts of other
countries would be of great relevance, therefore, we deem it
appropriate to examine similar cases decided by the Courts of
other jurisdictions. We must try to derive benefit of wisdom and
light received from any quarter."
17. The apex Court has held that in considering the cases of
cruelty, entire matrimonial relationship has to be considered and if
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the act of a party causes apprehension in the mind of another party
that it is not safe for him or her to continue the matrimonial
relationship with other, then decree of divorce has to be granted.
18. In the present case, within seven days of marriage, the
respondent received information in regard to illegal relationship with
Mr. Sumit Jain. She used to talk with Mr. Jain even after marriage
also. The appellant denied the aforesaid fact and concealed her act.
Hence, in our opinion, the trial Court has rightly held that the
respondent is eligible to get decree of divorce on the ground of
“cruelty”.
19. Learned counsel for the appellant also raised an arguments
that Mr. Sumit Jain, was necessary party and in support of his
contention, he relied on the judgment of this Court reported in
Jaideep vs. Rashmi Shah [2011 (2) MPLJ 680. We are not in
agreement with the arguments advanced by the counsel for the
appellant. This Court in the aforesaid judgment has specifically held
that the allegations of illegal relationship is made, then the aforesaid
person is not necessary party. However, he may be a proper party.
There is no necessity to make a person as a party in matrimonial
proceedings in accordance with Indian Law against whom an
allegation of illicit relationship has been made. Hence, the arguments
advanced by the counsel for the appellant is hereby rejected.
22
20. In this view of the matter and taking into consideration the
principle of law laid down by the apex Court in the case of Samar
Ghosh vs. Jaya Ghosh [supra] in our opinion, the trial Court has
considered the evidence properly and passed the proper judgment
and decree. Consequently, we do not find any merit in this appeal. It
is hereby dismissed. No order as to the costs.
(S.K. Gangele) (Anurag Shrivastava)
Judge Judge
Pb
23
