Expanding envelop of mental cruelty for men to seek divorce

Title - Expanding envelop of mental cruelty for men to seek divorce; a view by Hon’ble HC of Gujarat.

Gujarat HC on 22-04-2013 rules that wife not allowing her in-laws to stay with her and her husband can be a ground for divorce under mental cruelties to husband………..

Source:
https://www.dnaindia.com/ahmedabad/1826082/report-saas-bahu-stories-are-not-always-funny-some-end-in-divorce

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Caution:-
All victim husbands from Gujarat may use this Judgment if facts are similar to their advantage in under 3 months time as chances of last red para being Appealed before Hon’ble SC is quite HIGH. The ld. Advocate appearing for Respondent Wife has already managed 3 months suspension for Husband not to get himself re-married while Oral judgment was being announced in Hon’ble CJI Court. I feel she is moving to Hon’ble SC. So make sunshine before Hon’ble SC may reverse last para in this Judgment of Gujarat HC.

FIRST APPEAL NO. 212 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA

and

HONOURABLE MR.JUSTICE J.B.PARDIWALA

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MITESH NAVINBHAI BHATT....Appellant(s)

Versus

PARUL M BHATT D/O CHHELSHANKAR TRIVEDI....Defendant(s)

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Appearance:

MR AY KOGJE, ADVOCATE for the Appellant(s) No. 1

MS KJ BRAHMBHATT, ADVOCATE for the Defendant(s) No. 1

MS VARSHA BRAHMBHATT, ADVOCATE for the Defendant(s) No. 1

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Date : 22/04/2013

CAV JUDGEMNT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

This appeal under Section 19 of the Family Courts Act, 1984 is at the instance of a husband in a Suit for Divorce, and is directed against the judgment and decree dated 13th April, 2012, passed by the learned Judge of the Family Court, Surat, in Hindu Marriage Petition No. 412 of 2008 (Old HMP No. 145 of 2006), thereby dismissing the petition for divorce.

2. Being dissatisfied, the husband has come up with the present appeal.

3. The husband-appellant filed a Suit for divorce, being Hindu Marriage Petition No. 412 of 2008 and the case made out by the appellant may be precise thus:

a) The parties were Hindus and were married according to the Hindu rites and the customs on 6th March, 1994 at Surat;

b) During the wedlock, a son named Urmish was born on 15th February, 1997 and thereafter, a daughter named Mrudvi was born on 8th August, 2005. After the marriage, the appellant used to take good care of his wife and was performing all the matrimonial obligations which a husband is expected to perform for a normal healthy marital life;

c) The wife's nature had been very obstinate and rude. However, the husband consoled himself with the hope and belief that his wife would improve and accordingly, continued with the marital life. However, the relationship between the parties started getting strained as the behaviour of the respondent towards the appellant was very rude and rough. The respondent-wife made it very clear before the appellant that the income derived by her would be kept by her and the income derived by the husband would have to be shared equally according to the law. Although the respondent happened to be the wife of the appellant, the appellant with the sole intention of avoiding any controversy, agreed to the terms dictated by the wife.

d) The father of the appellant named Navinbhai Jethashankar Bhatt was detected with blood cancer in the year 1996 and therefore, the appellant had to visit Ahmedabad time and again for the treatment of his father. At times, the appellant used to stay over in the night at Ahmedabad for the treatment of his father, which was not liked by the wife. The wife also restrained the appellant from visiting his ailing father. At the relevant point of time in the year 1996, when the appellant used to visit Ahmedabad to enquire about the health of his father who was suffering from blood cancer, the wife was pregnant and the wife used to administer threats to the appellant that if he would meet his father, then she would abort the foetus and also demand for divorce;

e) During the period of ailment of the father of the appellant, the appellant, as a son, was desirous of gifting a gold chain to his father, but the wife had a strong objection in that regard. The appellant had bought a gold chain on instalments, but due to quarrel picked up by the wife, the appellant was constrained to return the gold chain;

f) Thereafter the wife demanded a pair of ear-rings, which the appellant bought from his own money for his wife and it was very willingly accepted by the wife. However, the grievance of the appellant was that at that point of time, his wife did not enquire with him as to how he had managed the finance, as a result of which the appellant felt very bad and also had a thought of committing suicide. The appellant, with a finger on his lips, kept on bearing the pain and agony of the cruelty at the end of his wife;

g) On 27th January, 1997, the father of the appellant passed away. On the demise of the father of the appellant, the appellant brought his mother along with him and kept her at his house at Surat. However, even this was not liked by the wife and the wife behaved very badly, unbecoming of a Hindu lady, as a result of which the appellant was forced to drop his mother at Navsari. According to the appellant, his mother was staying all alone at Navsari after the demise of his father;

h) The wife also refused to cook food and at times, the appellant used to go off to bed hungry. At times the wife used to forcefully drag the husband to a restaurant for dinner;

i) For the purpose of setting up a hospital named "Shreyas Surgical Hospital" in the joint name, the appellant had requested his wife to help him financially from her savings. At that point of time, the wife placed a condition that she would render financial help provided the appellant agreed that none of his relatives or friends should visit their residence or the hospital;

j) The wife used to time and again administer threats of filing a Police complaint on the allegations of demand of dowry by the appellant;

k) At the time of the opening of the hospital, the wife did not permit any of the guests of the appellant who had come from Saurashtra to enter their residence or the hospital, as a result of which the appellant found himself in a very embarrassing and precarious situation due to humiliation at the end of his wife;

l) As and when the mother of the appellant used to fall sick, the appellant, as a son, used to visit Navsari and at that point of time, the wife used to strictly tell the appellant that he should not get his mother along with him to Surat. The wife used to threaten the appellant that if he would get his mother at Surat for the treatment, then she would commit suicide by consuming poison. Due to such threats by the wife, the appellant was unable to get his mother to Surat for medical treatment and was compelled to keep his mother at Navsari. 

m) Even after the birth of a daughter on 8th August, 2005, the wife used to sleep in one room and the appellant used to sleep in another room. Prior to seven months from the date of the birth of his daughter, the wife had stopped discharging all her marital obligations towards the appellant;

n) In view of inhuman cruel treatment and having failed to cope up with the situation, the husband was left with no other alternative, but to seek a decree of divorce in the larger interest of both the parties.

4. The Suit was contested by the wife by filing a written statement, being Exh.10, and the defence statement by the wife may be summed up thus:

i) There was no cause of action for filing the Suit, which was a misconceived and harassing one, and containing false, fabricated, frivolous and manufactured story purposely designed with ulterior motive;

ii) The Court had no jurisdiction to entertain the Suit;

iii) It has been denied that the wife possessed a very stubborn and obstinate nature, and asserted that she had been discharging all her marital obligations; and was ready and willing to make the marriage meaningful and happy;

iv) According to the wife, the petition by the appellant for dissolution of the marriage was preferred with the sole intention of causing mental pain and cruelty to the wife, and no cause of action had arisen at the end of the appellant to file such a petition for dissolution of the marriage;

v) The appellant was in a position to start the private hospital with the help and co-operation of the wife, but after the hospital was set-up, all of a sudden the appellant's attitude and behaviour changed towards the wife. The attitude of the appellant towards his children also changed and was very negative. The appellant even refused to talk with the wife and the children;

vi) The appellant never used to have food at home, nor even tea or breakfast. The appellant leaves the house at around 6'O Clock in the morning and returns at home around 12'O Clock in the night. When the wife used to enquire with the appellant as to why the appellant returns so late in the night, the appellant refused to give any answer;

vii) The appellant hardly cared for the welfare of his children and even refused to discharge his financial obligations towards the family. The Santro Car bought by the appellant was also from the funds of the wife. The bungalow in which the appellant resides was also constructed from the savings of the wife and the housing loan, which she had obtained from the Bank;

viii) The wife was a doctor, a Gazetted Officer, Class-I, working in the Government Medical College and New Civil Hospital, Surat. The monthly instalment of Rs. 16,407/- towards the housing loan also gets deducted from the salary of the wife and from the balance amount of the salary, the wife had to take care of herself and her two children;

5. The husband examined himself by filing his examination-in-chief on affidavit, being Exh.55. He reiterated the averments made in the plaint. It deserves to be noted that the wife, despite being given opportunity to cross-examine the husband, failed to cross-examine and accordingly, her right to cross-examine her husband was closed vide order dated 23rd August, 2010, passed by the learned trial Judge.

6. On behalf of the husband, his mother Bhartiben Navinbhai Bhatt was also examined. In her evidence at Exh.65, Bhartiben has deposed that the appellant was her son and the respondent was her daughter-in-law. She has further deposed that the marriage of her son with the opponent was solemnised on 6th March, 1994 at Surat as per the Hindu rites and rituals and during the wedlock, a son named Urmish and a daughter named Mrudvi was born. She has further deposed that she used to reside along with her son and her husband Navinbhai Jethashankar Bhatt also used to stay along with the appellant. However, right from the beginning, her daughter-in-law displayed and exhibited stubborn and obstinate attitude and used to pick up quarrel with her son time and again on trivial matters. She has further deposed that after the marriage, her daughter-in-law made it very clear before the appellant that the income earned by her would not be parted with and would remain with her, whereas the income derived by the appellant would have to be shared according to the law. She has deposed that the behaviour and attitude of the respondent towards her and the father-in-law was very cruel, as a result of which she had to stay along with her husband at Ahmedabad. On 27th January, 1997, her husband passed away i.e. father of the appellant, as a result of which the appellant kept her along with him at his house and at that point of time also, the behaviour of the respondent was very bad and she compelled the appellant to drop her back to Navsari, due to which she had to reside all alone at Navsari. She has deposed that her son used to come to Navsari to meet her, and in the night, used to return to Surat, due to which respondent used to pick up quarrel and even refused to serve food in the night. Many a times her son used to go off to bed without any food remaining hungry. Many a times her son had to go to a restaurant to have food. The respondent used to restrain the appellant from meeting his friends or relatives and even did not permit any of his friends or relatives to visit the hospital or residence. She has deposed that if any friends or any relatives would go to meet her son, then in such circumstances her daughter-in-law used to behave very badly and used to insult the friends or relatives. Time and again the respondent used to threaten that she would lodge a false case with the Police for demand of dowry. She has deposed that at the time of the opening of the hospital named Shreyas, respondent had not permitted any of the friends of the appellant or the relatives to enter the hospital or the residence and were asked to get out. The respondent was not maintaining any relations with the appellant as a wife and despite stay in one house, the appellant and the respondent used to sleep in separate rooms. Despite persuading and explaining the respondent, there was no change in the attitude of the respondent and in such circumstances, it was very difficult for the appellant to stay along with the respondent as husband and wife.

7. The wife even failed to cross-examine the mother-in-law and accordingly, the entire oral evidence of the mother-in-law also remained unrebutted.

8. The learned trial Judge framed the following issues at Exh.44 and recorded his findings thereon as below:-

9. The learned trial Judge on consideration of the materials on record, came to the conclusion that the husband had failed to make out any case of cruelty so as to grant a decree of divorce as prayed for. The main ground which weighed with the learned trial Judge in dismissing the Suit was that if the relations of the parties were not cordial from 1997 and the wife was not living or cohabiting with the husband, then in such circumstances, the second child would not have been born in the year 2005. According to the learned trial Judge, the fact that a daughter was born on 8th August, 2005 itself would suggest that there was nothing wrong with the marriage and the relations between the spouses was quite normal. Accordingly, the learned trial Judge dismissed the petition for divorce filed by the husband, giving rise to this appeal.

10. Mr. Alpesh Kogje, the learned counsel appearing for the appellant-husband vehemently submitted that the learned trial Judge committed a serious error in coming to the conclusion that his client had failed to prove that there was cruelty at the end of the respondent wife.

11. Mr. Kogje submitted that the entire oral evidence of his client as well as the oral evidence of the mother of his client has gone unrebutted as there was no cross-examination by the respondent-wife. In such circumstances, the learned trial Judge ought to have believed the case set up by his client as regards cruelty. Mr. Kogje further submitted that the fact that a second child was born on 8th August, 2005 by itself could not have been made a ground by the learned trial Judge to reject the petition and disbelieve the acts of cruelty narrated by the husband in his application at the end of his wife. According to Mr. Kogje, it could not be said that with the birth of the second child, the husband condoned all the earlier acts of cruelty committed by his wife. Even if the cruelty continues thereafter, it could still be a ground for divorce. According to Mr. Kogje, condonation of cruelty is always on the understanding that such acts would not be repeated and if such acts are repeated, then such condonation pales into insignificance.

12. Mr. Kogje submitted that the averments contained in the written statement filed by the respondent-wife cannot take the place of proof unless evidence to the contrary is produced by the wife. Except denial of all the allegations levelled in the plaint, the wife has not led any evidence. The wife also failed to enter the witness box and examine herself, so that the husband could have cross-examined her on various aspects of her averments made in the written statement.
In such circumstances, as referred to above, Mr. Kogje prays that the appeal merits consideration and the same may be allowed by passing a decree for divorce.

13. Ms. Kalpana J. Brahmbhatt, the learned counsel appearing for the respondent-wife vehemently submitted that the learned trial Judge committed no error, not to speak of any error of law, in dismissing the Suit, thereby refusing to grant a decree for divorce as prayed for by the husband. Ms. Brahmbhatt submitted that the cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. The obstinate attitude, stubbornness or occasional outburst of anger may not amount to cruelty, though it may amount to misconduct. However, a misconduct howsoever grave in nature, could not be made a ground for divorce. Ms. Brahmbhatt further submitted that the husband and wife had been residing together in one house and most of the time, the husband used to return home very late in the night and leave the house early in the morning, even without having a cup of tea. In such circumstances, with the display of such behaviour, the wife at times may get disturbed and pick-up a quarrel, but that could hardly be termed as a behaviour sufficient enough to come to the conclusion that the husband would not be able to live together with his wife. Ms. Brahmbhatt fairly conceded that her client had not cross-examined the appellant-husband as well as his mother. According to Ms. Brahmbhatt, failure on the part of her client to cross-examine the husband and his mother by itself cannot be made a ground for divorce, as cross-examination is not the only mode of discrediting a witness. According to Ms. Brahmbhatt, if examination-in-chief fails to disclose any relevant material or cogent evidence to constitute cruelty, then in such circumstances the learned trial Judge would be justified in rejecting the petition for divorce.

In such circumstances, Ms. Brahmbhatt prays that there being no merit in this appeal, the same may be dismissed.

14. Having heard the learned counsel for the respective parties and having gone through the materials on record, in our opinion, the following two questions fall for our consideration:-

(i) Whether the learned trial Judge committed any error in passing the order impugned?

(ii) Whether the appellant-husband has made out a case that after solemnization of the marriage, the wife has treated him with cruelty?

15. The cruelty has not been defined in the Hindu Marriage Act, 1955. The categories of cruel conduct cannot be compartmentalized. In the present case, the allegations levelled by the husband is that of mental cruelty. Mental cruelty is now well recognized as a ground for divorce. The persistent rude and uncultured behaviour can cause more pain and misery than a physical beating. However, it is also well settled that the conduct complained of, should be so grave and weighty as to come to the conclusion that the husband cannot reasonably be expected to live with the wife. It must be more serious than the ordinary wear and tear of married life. The cumulative conduct, taking into consideration the circumstances and background of the parties has to be examined to reach to the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law.

In the case of Suman Kapur Vs. Sudhir Kapur, reported in AIR 2009 SC 589, the apex Court has examined the concept of cruelty. It was observed that the term 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(ia) of the Act in the context of human conduct and behavior in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one spouse which adversely affects the other spouse. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of degree which is relevant. 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 other 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. Mens rea 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 ill-treatment. [See Shobha Rani Vs. Madhukar Reddi, AIR 1988 SC 121; Vishwashnath Sitaram Agrawal Vs. Sau. Sarla Vishwashnath Agrawal, AIR 2012 SC 2586; Smt. Mayadevi Vs. Jagdish Prasad, AIR 2007 SC 1426 and Vinita Saxena Vs. Pankaj Pandit, AIR 2006 SC 1662]

16. In the present case, the husband has narrated the sequence of events which had taken place in his marital life right from the inception of the marriage.

The marriage is bound to fail if there is no mutual respect between the spouses living together under one roof. What should be the approach of the Court in the matters of the present nature has been very well explained by the Supreme Court in the case of Smt. Mayadevi Vs. Jagdish Prasad, reported in 2008(1) GLH 516 (SC). The Court made the following observations in paragraphs 9 to 13.

9. 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 his 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 delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a 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 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.

10. 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 unlawful or illegal. Then the impact or 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 (See Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 and A. Jayachandra v. Aneel Kaur 2005 (2) SCC 22 ).

11. 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 descripttion 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.

12. 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 spouses 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 be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

13. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane v. Dastane, AIR 1975 SC 1534)."

In the case of Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC 511, the apex Court held:

“No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of mental cruelty. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental Cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the 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. In such like situations, it may lead to mental cruelty”.

Bearing in mind the aforesaid principles, we have no hesitation in coming to the conclusion that the acts complained of by the husband would definitely constitute 'mental cruelty'. To deprive a son in taking care of and treating his father suffering from blood cancer would definitely cause a lot of mental pain and agony. Such are the allegations against the wife in the present case, which have gone unrebutted. To time and again administer threats to the husband by the wife that she would commit suicide if the husband would meet his father suffering from blood cancer would also definitely constitute 'mental cruelty'.

17. In the present case, the husband has in so many words stated that he was desirous of gifting a gold chain to his father who was almost on a deathbed, but due to strong objection at the end of his wife, he was not able to gift the same to his father. The husband has also stated that after the demise of his father on 27th January, 1997, he brought his mother along with him and kept her at his house at Surat, but the same was not liked by the wife, as a result of which the wife behaved very badly, unbecoming of a Hindu lady. The husband was left with no other option but to drop his mother at Navsari, where his mother had to stay all alone after the demise of his father.

18. There are allegations at the end of the husband that the wife hardly used to cook food and many a times, the husband had to go off to bed hungry. These allegations have also gone unrebutted. The husband has also stated that even at the time of opening of his hospital, the wife had refused to allow any of his friends or the relatives to enter their residence or the hospital.

19. We have noticed that the learned trial Judge rejected the petition filed by the husband for divorce on the reasoning that if the relations were strained, then the couple would not have gone for a second child and the fact that a daughter was born on 8th August, 2005 itself was sufficient to come to the conclusion that the marital relations were not strained to that extent or there was no such cruelty as alleged by the husband. This aspect has been very vociferously highlighted before us by Ms. Brahmbhatt, the learned counsel appearing for the wife, but we are not impressed by such submission of Ms. Brahmbhatt and we do not agree with the reasoning adopted by the learned trial Judge.

20. The act of condonation of cruelty could be one of the relevant considerations in deciding a petition for divorce. However, a decree for divorce should not be refused only on the ground that the husband condoned all the acts of cruelty complained of against his wife. As such, the question of condonation has to be examined by the Court even though the same has not been pleaded as a defence by the respondent. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation, there must be two things: (i) forgiveness; and (ii) restoration. As to what constitute forgiveness, would apparently depend upon the facts of each case.

There is no doubt that a daughter was born on 8th August, 2005, but there are allegations levelled by the husband which have again gone unrebutted that prior to seven months before the birth of the daughter on 8th August, 2005, the parties had no relations and the wife was not discharging any of her marital obligations. An act of condonation of cruelty is always on the understanding that the spouse against whom such acts of cruelty are alleged would not indulge into any such acts in future. However, if such acts of cruelty continue even after the condonation, then in such circumstances the Court would be justified in granting a decree for divorce.

In the aforesaid context, we may quote with profit a well-known decision of the Supreme Court in the case of Dr. N.G. Dastane Vs. Mrs. S. Dastane, reported in AIR 1975 SC 1534(1). The Supreme Court made following observations in paragraphs 56, 57 and 58, which are reproduced below:-

"56. The evidence of condonation consists here in the fact that the spouses led a normal s*xual life despite the respondents acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of s*xual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during co-habitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of s*xual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the s*xual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal s*xual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal s*xual life with the respondent, even after a series of acts of cruelty on her part.

57. But condonation of a matrimonial offence is not to be likened to a full Presidential Pardon under Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival. Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. "No matrimonial offence is erased by condonation. It is obscured but not obliterated" (1). Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence(2). Condoned cruelty can therefore be revived, say, by desertion or adultery."

58. Section 23 (1) (b) of the Act, it may be urged, speaks of condonation but not of its revival and therefore the English doctrine of revival should not be imported into matters arising under the Act. Apparently, this argument may seem to receive some support from the circumstances that under the English law, until the passing of the Divorce Reform Act, 1969 which while abolishing the traditional bars to relief introduces defences in the nature of bars, at least one matrimonial offence, namely, adultery could not be revived if once condoned (3). But a closer examination of such an argument would reveal its weakness. The doctrine of condonation was established by the old ecclesiastical courts in Great Britain and was adopted by the English Courts from the canon law. Condonation is a technical word which means and implies a conditional waiver of the right of the injured spouse to take matrimonial proceedings. It is not forgiveness as commonly understood (4). In England condoned adultery could not be received because of the express provision contained in section 3 of the Matrimonial Causes Act, 1963 which was later incorporated into section 42(3) of the Matrimonial Causes Act, 1965. In the absence of any such provision in the Act governing the charge of cruelty, the word condonation must receive the meaning which it has borne for centuries in the world of law(").Condonation under section 23 (1) (b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed."

It is true as submitted by Ms. Brahmbhatt that cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to proved facts, their evidence might well be discarded on that ground. It is also well settled that if their testimony is on the face of it unacceptable, Courts are not bound to accept their testimony merely because there was no cross-examination. However, we are not impressed by such submission of Ms. Brahmbhatt for the simple reason that there is no scope of applying such principle of law to the facts of the present case. The averments made in the plaint as well as the oral evidence of the husband and his mother clearly spells out acts of mental cruelty at the end of the wife. It is not a case where the only averments made by the husband is that as the marriage between them has broken down, no useful purpose would be served to keep it alive, but on the contrary, specific instances of cruelty have been highlighted by the husband, which clearly prove that the husband was subjected to mental cruelty. By merely filing a written statement and denying the allegations, the wife could not be said to have discharged the burden of leading evidence to meet with the case made out by the husband.

If according to the wife the relations are not strained and the marital life is quite normal, then what was the reason for the wife to file a complaint against the husband before the Women's Rights Commission and drag the appellant-husband all the way to Delhi. It appears that even the Women's Rights Commission did not find any substance in the allegations levelled by the wife and ultimately dropped the proceedings as stated by the husband in his evidence on oath.

21. In such circumstances, we are left with no other option but to allow this appeal and grant the decree for divorce dissolving the marriage between the parties.

22. In the result, the appeal is allowed. The judgment and decree dated 13th April, 2012, passed by the learned Judge of the Family Court, Surat in Hindu Marriage Petition No. 412 of 2008 filed by the husband is set-aside, and a decree of divorce is passed in favour of the husband. The marriage between the parties stand dissolved. The appellant-husband shall continue to pay a sum of Rs. 12,000/- towards maintenance of his son and daughter, as ordered by the Court below. No amount towards alimony is ordered to be paid to the wife as the respondent-wife is a doctor by profession and is serving with Government Medical College and New Civil Hospital, Surat.

23. On the facts and circumstances of the case, there shall be no order as to costs.

(BHASKAR BHATTACHARYA, C.J.)

(J.B.PARDIWALA, J.)
Mohandas