By Adv. R. S. Agrawal
IN THE judgement of a matrimonial matter contested between the appellant –husband (35) and respondent –wife (33)-names not disclosed by the Bombay High Court at Mumbai – delivered on September 6, 2023, by the division bench consisting of Justice Nitin W Sambre and Sharmila U Deshmukh, has stated that “in modern society, the burden of the household responsibilities have to be borne by both husband and wife equally”.
The HC has quite candidly stated that the primitive mindset expecting the woman of the house to solely shoulder the household responsibilities needs to undergo a positive change. The court has pointed out that on perusal of admissions which has come on record, the admitted position is that both the appellant and the respondent were employed and as such, expecting the respondent to do all the household work reflects a regressive mindset.
The HC commented that the marital relationship also, cannot result in isolating the respondent-wife from her parents and she cannot be expected to severe all ties with her parents after her marriage. Being in contact with one’s parents cannot by any stretch of imagination be construed as inflicting mental agony on the other party. In the court’s view, putting restrictions on the respondent to curtail her contact with her parents, has in fact, subjected the respondent to mental cruelty apart from physical cruelty which has been established by the incident of February 28, 2011 and December 31, 2011.
The appellant was seeking decree of divorce on the ground of cruelty and as such it will have to be seen whether the appellant has discharged the burden of proof by leading cogent and satisfactory evidence.
If pleadings are perused, apart from deposing about the general conduct of the respondent, three incidents of cruelty have been pleaded in the petition for divorce. The first incident is of the year 2011, that upon the appellant refusing to attend the house warming ceremony at the respondent-wife’s father’s house, the respondent assaulted him. The second incident is of December 30, 2012, that the respondent and her mother quarreled and expressed their happiness at the accident of his brother; and the third incident is of December 31, 2012, that the appellant was assaulted by the respondent and her mother at night and was thrown out of the house and the next day, the appellant was slapped by the respondent’s mother in the presence of security guard.
According to the HC, it is settled that to constitute cruelty, the conduct of the other party should be of such a nature which will satisfy the court that it has become impossible for the wronged party to live with the other party without mental agony. Cruelty generally does not consist of isolated acts but series of acts spread over period of time. In this case, the marriage was performed in the year 2010 and matrimonial co-habitation lasted for about two and half
years. In this span of 30 months, three incidents of alleged cruelty, apart
from general conduct of the respondent have been set forth as constituting ground of cruelty.
To this, the response of the respondent-wife has been that in fact the respondent has been subjected to mental and physical cruelty at the hands of the appellant. A specific incident has been pleaded that on February 28, 2011, upon a quarrel between the parties, the appellant had mercilessly assaulted the respondent which prompted the respondent to call her parents, who arrived on the next day.
It is pleaded that on December 30, 2012, the appellant abused the respondent’s mother and on the same day, the appellant picked up a quarrel with the respondent and then when her mother had intervened, the appellant assaulted the respondent and her mother and due to brutal assault, the respondent and her mother was traumatised and screamed for help where the security guard entered into the flat and threatened to call the police.
In view of the HC, as against the rival allegations of cruelty, the evidence on record will have to be scrutinised to ascertain as to whether the appellant has been able to establish his case and even if established whether then same is sufficient to entitle him to a decree of divorce on the ground of cruelty. The HC has also referred to Supreme Court’s decision of the case –Samar Ghosh v. Jaya Ghosh –(2007) 4 SCC 511, in the paragraph 101, SC have provided some illustrations to what constitutes cruelty, stating that no uniform standard can ever be laid down for guidance.
The respondent-wife’s father has deposed that he was informed about the incident the same night and that he informed his son about the same. The arrival of the wife’s brother the next day and leaving of the matrimonial house by the wife and her mother lends credence to the version of the respondent-wife. Her version is also supported by the admission of the appellant that on December 31, 2012, the wife had lodged the complaint against the husband.
AS regards the general conduct deposed by the appellant that the respondent was in constant touch with her family, that she was not doing the household work and many times the appellant had, to leave for his work without food, the appellant’s father during the cross-examination admitted that there was a house help which was hired for doing the household work as well as for cooking the meals.
He had further admitted that the appellant and the respondent were employed and as such did not have much time. It had been also admitted by him that on many occasions, the appellant used to leave house without taking his breakfast. He had further admitted that entire responsibility of the house was on the respondent.
After consideration of the evidence the HC’s finding is that the instances of cruelty have not been substantiated by the appellant by leading cogent and satisfactory evidence. This apart from the fact that in the matrimonial co-habitation of about two and half years, three isolated incidents cited, apart from the general conduct of the respondent. In the HC’s opinion, cruelty generally refers to a series of acts occurring frequently, which results in causing such mental or physical agony to the wronged party that the Court would be left with no option but to dissolve the marriage, which is not so in this case. Though the parties have been living apart since about 10 years and there is irretrievable break down of marriage, the HC has stated that this Court in an appeal under the provisions of section 39 of the Special Marriage Act, 1954, cannot grant divorce on the ground that there is no possibility of reunion, unlike the Supreme Court, which can do so, under Article 142 under the Constitution of India. The High Court has dismissed the appeal.