RAMCHANDERversusANANTA

                   [2015] 2 S.C.R. 255


                     RAMCHANDER                                A
                             V.
                        ANANTA
              (CivilAppeal No 3483 of2011)
                   FEBRUARY 24, 2015
                                                               B
      [VIKRAMAJIT SEN AND C. NAGAPPAN, JJ.]
      Hindu Marriage Act, 1955 - ss.13(1 )(i-a) and 13(1 )(i-b)
- Petition for divorce - By husband - On the grounds of
mental cruelty and desertion - Decree of divorce granted by
trial court - Decree set aside by High Court - On appeal, C
held: The alleged conduct of the wife is not so grave and
weighty amounting to mental cruelty, but can be said only a
wear and tear of married life - The ground of desertion also
is not established in view of the evidence of three witnesses,
who had seen the couple together as spouses even after the D
alleged date of desertion - The marriage also cannot be said
to have irretrievably broken down - Decree of divorce rightly
set aside.
     Words and Phrases- 'Cruelty' - Meaning of- Explained,     E
in the context of s. 13(1)(i-a) of Hindu Marriage Act, 1955.
    Dismissing the appeal, the Court
     HELD: 1.1 The expression 'cruelty' has not been
defined in the Hindu Marriage Act. Cruelty for the F
purpose of Section 13(1 )(i-a) of the Act is to be taken as
a behaviour by one spouse towards the other, which
causes a 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. Cruelty can be G
physical or mental. In the present case, what is alleged
is mental cruelty and it is necessarily a matter of


                            255                                H
256        SUPREME COURT REPORTS               (2015] 2 S.C.R.


A inference to be drawn from the facts and circumstances
  of the case. It is settled law that the instances of cruelty
  are not to be taken in isolation but to take the cumulative
  effect of the facts and circumstances emerging from the
  evidence on record and then draw a fair inference
B whether the plaintiff has been subjected to mental cruelty
  due to conduct of the other spouse. [Para 1O] [260-D-G]
          Samar Ghosh Vs. Jaya Ghosh 2007 (4) SCR 428 =
      (2007) 4 sec 511 - referred to.
c         1.2 In the present case, the conduct of the wife that
      had been complained of appears to be not so grave
      and weighty that it can be treated to be more serious
      than ordinary wear and tear of married life. [Para 15]
      [262-F-G]
 D
          Parveen Mehta Vs. lnderjit Mehta (2002) 5 SCC 706; A.
      Jayachandra Vs. Aneel Kaur 2004 (6) Suppl. SCR 599 =
      (2005) 2 SCC 22; and K.Srinivas Rao Vs. D.A. Deepa 2013
      (2) SCR 126 = (2013) 5 SCC 226 - referred to.
 E
        2. The ground of desertion alleged is also not
   established. The child was only 7 years old in 2003 and
   his testimony in this regard will not advance the case of
   the plaintiff. DWs 2 to 4 have testified that they had seen
 F the plaintiff and the defendant together as spouses even
   during 2005. There is no denial against such contention
   in cross examination. There is no reason for them to
   falsely depose against the plaintiff. The trial court has
   not indicated as to how their testimonies were not found
 G reliable and the High Court has concluded that it does
   not find their evidence unworthy of credence. [Para 16]
   [262-G-H; 263-A-C]
       3. It also cannot be said that the marriage between
   the plaintiff and defendant has irretrievably broken down.
 H [Para 17] [263-D]
                 RAMCHANDER v. ANANTA                               257



                    Case Law Reference                               A

    (2002) s sec 106                referred to     para 7

    2004 (6) Suppl. SCR 599         referred to     para 7

    2013 (2) SCR 126                referred to     para 7           B
    2007 (4) SCR 428                referred to     para 10

   CIVIL APPELLATE JURISDICTION: Civil Appeal No.
3483 of 2011
                                                                     c
    From the Judgment and Order dated 24.11.2008 of the
High Court at Calcutta Circuit Bench at Port Blair in First Civil
Appeal No. 3 of 2008

    R. Chandrachud for the Appellant.
                                                                     D
    Bhakti Vardhan Singh, R. C. Kohli for the Respondent.

    The Judgment of the Court was delivered by

     C. NAGAPPAN, J. 1. The appellant-husband in this civil
appeal has assailed the judgment dated 24.11.2008 passed             E
by the High Court of Calcutta Circuit Bench at Port Blair in F.A.
No.003 of2008, wherein the Division Bench of the High Court
set aside the decree of divorce dated 14.7.2008 granted by
the District Judge, A & N Islands, to the appellant herein, in
Matrimonial Suit No.27 of2005.                                       F

     2. Shorn of unnecessary details the facts in brief which
give rise to the appeal herein are as follows: The appellant-
husband is an engineer and the respondent-wife is a
draftsman, both working in the office of Andaman Public Works G
Department and their marriage took place on 2nct March 1994
and a son was born in the wedlock on 24.1.1996. It is an
admitted fact that the respondent-wife had filed a complaint
under Section 498-A IPC against the husband and it was
subsequently withdrawn by her. It is also admitted fact that H
258       SUPREME COURT REPORTS                  [2015] 2 S.C.R.


                        '
A during their cohabitation the couple had changed their
  residence thrice. In 1997, the respondent-wife left the
  matrimonial home and started to live with her parents and upon
  legal notice sent by her husband she returned back to the
  matrimonial home. Then again in March 2003, the wife left the
B matrimonial home to live with her parents and has not come
  back since.
        3. The appellant-husband filed a suit for divorce on the
   ground of cruelty and desertion under Section 13(1 )(i-a) and
 c 13(1 )(i-b) of the Hindu Marriage Act, 1955. He has alleged
   that immediately after marriage the relationship between the
   spouses was not cordial and the wife did not want to live with
   husband's family and wanted to live separately. She insulted
   and abused the husband calling him 'dhobi' and the minor child
 o as 'dhobi's son' and because of her rude behaviour with
   landlord and neighbours they had to change the residence
   thrice. The wife refused to perform any household work and
   did not take proper care of their minor child and the husband
    had to bring food from outside and ultimately in the month of
 E March 2003, she left the matrimonial home and did not return,
    leading to the filing of the divorce petition by the husband.
        4. The respondent-wife contested the suit by filing her
   written statement alleging that since her father was working
 F as 'chowkidar', her husband's family was ill-disposed towards
   her and they used to taunt her for not bringing enough dowry.
   She has specifically denied the allegations in the plaint and
   asserted that she had never behaved improperly and she took
   good care of her child. She also leveled an allegation of extra
 G marital affair against her husband with a woman who was
   working under him. According to her whenever she confronted
   him in this respect the husband would shout and abuse her.
      5. The appellant-husband besides examining himself as
   PW1, examined the minor child as PW2 and the servant as
 H PW3 on his side. The respondent-wife examined herself and
                RAMCHANDER v. ANANTA                           259
                   [C. NAGAPPAN, J.)

her mother as DW1 and DW5 respectively and further A
examined three persons working in municipal council as DWs
2 to 4 on her side.

     6. The trial court on a consideration of oral and
documentary evidence held that the plaintiff-husband proved      8
the ground of cruelty and desertion and granted the decree of
divorce as prayed for. Challenging the same the defendant-
wife preferred the appeal and the High Court on an elaborate
consideration held that the trial court was not justified in
decreeing the suit by dissolving the marriage between the        c
spouses and allowed the appeal. Aggrieved by the same the
husband has preferred the present appeal.

      7. The learned counsel for the appellant-husband
submitted that the High Court failed to consider and appreciate
the cumulative instances of mental cruelty as pleaded and D
proved but considered every instance separately and held that
each by itself would not entitle the husband to a decree for
divorce and said approach is erroneous and contrary to law. It
is his further submission that the High Court erred in not placing E
reliance on the child's testimony and fell into a grave error in
reversing the well considered judgment of the trial court. It is
also submitted that mental cruelty was clearly established and
in any event the marriage has broken down irretrievably and
on that score alone the decree for divorce should have been F
passed. In support of the submissions the learned counsel
relied on the following decisions : (1) Parveen Mehta Vs.
lnderjit Mehta (2002) 5 SCC 706; (2) A. Jayachandra Vs.
Aneel Kaur (2005) 2 SCC 22); (3) Samar Ghosh Vs. Jaya
Ghosh (2007) 4 SCC 511; and (4) K.Srinivas Rao Vs. D.A. G
 Deepa (2013) 5 SCC 226).

     8. The learned counsel for the respondent-wife contended
that the High Court examined the instances of mental cruelty
pleaded in this case on the parameters laid down by this Court
in the decision in Samar Ghosh case (Supra), and concluded        H
260         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A that the ground of mental cruelty has not been established by
  the plaintiff-husband. It is further submitted that the wife was
  compelled to live separately on account of the conduct of the
  husband. The further submission was that the impugned
  judgment does not suffer from any legal infirmity warranting
B interference.
           9. The appellant-husband and the respondent-wife are
      educated and working in the office of the Andaman Public
      Works Department. They got married on 2.3.1994 and son
c     was born to them on 24.1.1996. The appellant-husband filed
      the suit on 18. 7.2005 seeking for divorce on the grounds of
      cruelty and desertion.
        10. The expression 'cruelty' has not been defined in the
  Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-
0 a) is to be taken as a behaviour by one spouse towards the
  other, which causes a 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. Cruelty can be physical
  or mental. In the present case there is no allegation of physical
E cruelty alleged by the plaintiff. What is alleged is mental cruelty
  and it is necessarily a matter of inference to be drawn from the
  facts and circumstances of the case. It is settled law that the
  instances of cruelty are not to be taken in isolation but to take
F the cumulative effect of the facts and circumstances emerging
  from the evidence on record and then draw a fair inference
  whether the plaintiff has been subjected to mental cruelty due
  to conduct of the other spouse. In the decision in Samar Ghosh
  case (supra), this Court set out illustrative cases where
G inference of 'mental cruelty' can be drawn and they are only
  illustrative and not exhaustive.
        11. The plaintiff-husband alleged that after their marriage
   the defendant-wife did not like to live in the joint family and that
   led to shifting to separate residence and even there due to
 H quarrels, the wife had with the respective landlords and
                 RAMCHANDER v. ANANTA                             261
                    [C. NAGAPPAN, J.]

neighbours, there was frequent shifting of residence. According A
to the defendant-wife the shifting was necessitated once
because the husband desired so and on two other occasions
due to increase in rent demanded by the landlord and absence
of sufficient quantity of water to the rented premises. Neither
the family members of the plaintiff nor the landlords and B
neighbours of the tenanted premises were examined, and as
rightly held by the courts below, there is no evidence adduced
by the plaintiff to substantiate this allegation.
     12. The next instance alleged by the plaintiff-husband is c
that the defendant-wife used to abuse him as 'Dhobi' ar:id the
son as 'Dhobi's son' and such utterances had adverse effect
on them. PW1, plaintiff and PW2, the son have stated so in
their testimonies. Of course the defendantcwife has specifically
denied the said allegation. PW2, the child, when examined in o
September, 2007 in the court was 11 years old and was
studying in 6th class. On the date of alleged desertion in 2003
he was only about 7 years old. Prior to 2003 he was an infant
and it is unlikely he would remember in detail his early life.
Even if the version of the child that the mother used to call him E
Dhobi's son is accepted, such scolding is the common reaction
to discipline him and it denotes lack of culture on the part of
the mother.
      13. It is further alleged that the defendant-wife was reluctant F
to do any household work and was not cooking food for the
plaintiff and the child which necessitated the bringing of food
from outside, amounting to mental cruelty. Being working
mother, she could not spare enough time to be with the child
resulting in the feeling of not being cared for. In this context it is G
relevant to point out that the child was residing with his father
since alleged separation in 2003. The expression of the child
is due to attitudinal problem and it can be addressed to. The
trial court placed much reliance on the testimony of the child
 and the High Court termed it as misplaced. The learned H
262          SUPREME COURT REPORTS                      [2015] 2 S.C.R.


A counsel for the appellant found fault with the High Court in not
  placing reliance on the child testimony. We are not able to
  appreciate this contention. In the facts of the case we are of
  the considered view that the High Court has rightly done so.

 8           14. The next instance is the allegation made by the wife in
      the case filed by her under Section 498-A of IPC against the
      husband. Admittedly the case was withdrawn by the wife and
      she continued to live with the husband. In fact the High Court
      has observed in the impugned judgment that though the date
c     of filing of the criminal complaint is not frtenfioned in the plaint,
      from the sequence of narration of events therein it appears to
      have been filed prior to the birth of the child. The aberration on
      the part of the wife has been condoned by the husband by
      resuming cohabitation and they continued to live together till
 o    the date of alleged separation in 2003.
        15. The last instance of cruelty alleged by the husband is
   the allegation made by the wife that he has been involved in
   an extra marital affair with the daily rated mazdoor lady working
   under him. It is true that the defendant-wife has named the said
 E lady with whom her husband allegedly was having an affair.
   The plaintiff-husband though admitted that the said lady was
   working under him, has specifically denied the said allegation.
   The courts below have concurrently found that the wife has not
 F substantiated the said allegation. Mere failure to prove such
   allegation would not entitle the husband to a decree of divorce
   as rightly held by the High Court. The conduct of the wife that
   had been complained of appears to be not so grave and
   weighty that it can be treated to be more serious than ordinary
 G wear and tear of married life.
        16. What remains to be considered is the ground of
   desertion alleged by the plaintiff-husband, it is averred that
   the defendant-wife left the company of the plaintiff in March,
   2003 and date is not mentioned. The child was only 7 years
 H old in 2003 and his testimony in this regard will not advance
                 RAMCHANDER v. ANANTA                           263
                    [C. NAGAPPAN, J.]

the case of the plaintiff. DWs 2 to 4 have testified that they had A
seen the plaintiff and the defendant together as spouses even
during 2005. It is pointed out that there is no denial against
such contention in cross examination. It is relevant to point out
that DW2 is working in Marine Department and DW3 and DW4
are working in the Municipal Council and there is no reason B
for them to falsely depose against the plaintiff. The trial court
has not indicated with any clarity in its judgment as to how the
testimonies of the above witnesses were not found reliable by
it. The High Court on going through their testimonies has
concluded that it does not find their evidence unworthy of C
credence. We are in agreement with the said view expressed
by the High Court. Resultantly the ground of desertion alleged
is also not established.
    17. We also find no merit in the contention of the learned      o
counsel for the appellant that the marriage between the plaintiff
and defendant has irretrievably broken down.
   18. In the result there is no merit in the appeal and the
same is dismissed. No costs
                                                                    E
Kalpana K. Tripathy                             Appeal dismissed