This second appeal is directed against the judgment and decree passed by the Extra Assistant Judge, Thane in Civil Appeal No.174 of 1982 on 31-7-1984, reversing the judgment and decree passed by the trial court on 22-4-82. The dispute in the second appeal is a matrimonial dispute between the parties. The Appellant Shri Suresh Hari Shrotriya is husband and Mrs.Sunita Suresh Shrotriya is the wife. The parties married at Kalyan on 30-4-1977 as per Hindu vedic rites. They do not have any issue. Both husband and wife are serving. At the time of marriage, the wife was serving as a clerk in rationing office at Ulhasnagar. It appears that the wife was divorce prior to the present marriage between the parties. The grievance of the husband is that after the marriage for the first time in the year 1978 she accompanied the husband reluctantly at his native place for religious function. Though the husband and wife both have taken leave for one month but during the period of 8 days, wife started requesting the husband to return to Bombay, and, ultimately both of them came to Bombay without spending month at his native place. The grievance of the husband also is that in the month of March-78 wife told the maternal uncle of the husband that it was impossible for her to fulfil the matrimonial obligations with the husband and his maternal uncle gave her advice and thereafter the wife apologised. According to the husband the wife in front of his father told him that he had come to spoil their marital life and that he should not reside with them and accordingly husband's father left his place. It is further case of the husband that the wife was not worthy housewife and she was not at all attending to and looking after him and she used to get up very late.In the month of December-78 husband was required to go to his native place for religious function and husband asked her to accompany him but the wife flatly refused and told him that she was not his servant and she would not behave according to his liking and wish and thereafter the wife physically assaulted him and she abused him in very filthy language. The husband thereafter had to go alone to his native place to perform religious ceremony. On 2-2-79 the husband asked the wife to go to his uncle Mr.Kulkarni but instead she went to Kalyan at her parents place on next day. On 3-2-79 the wife and the brother came to the appellant-husband and told him that the wife should be sent to parents place at Kalyan as she was ill. On that day the wife took away all her belongings and left the matrimonial home once for all. According to husband the behaviour of the wife caused mental cruelty to him and all his hopes were shattered by the wife's behaviour. In the petition filed by the husband seeking dissolution and divorce of marriage under Section-13(1) (a), of the Hindu Marriage Act, 1955 in addition to the aforesaid averments relating to mental cruelty, case for desertion was also sought to be pleaded but since the learned counsel for the appellant does not press the ground desertion, the facts relating there to are not relevant for the purposes of present second appeal. The petition filed by the husband was contested by the wife and she denied the allegations made in the petition. The husband examined himself and also his brother-in-law Shri.Krishna Shivram Tungar, and maternal uncle Mr.Kulkarni. The wife also examined herself.
2.The trial Court after recording evidence and hearing the learned counsel for the parties reached the conclusion that husband has proved that behavior of the wife had caused mental cruelty to him. The trial Court also concluded that husband had proved that wife deserted him on 3-2-1979. On these findings, the Jt. Civil Judge, Senior Division, Thane, vide judgment and decree dated 24-2-82, declared that the marriage solemnised between the parties on 30-4-77 would stand dissolved on the ground of cruelty and desertion. The wife was directed to pay the cost to the husband.
3.The judgment and decree passed by the Jr. Civil Judge, Senior Division, Thane on 24-2-88 was carried in appeal by the wife and the Extra Assistant Judge, Thane did not agree with the findings recorded by the trial Court. The appellate Court held that the husband has failed to prove that the wife permanently left the matrimonial home on 3-2-79 that he was entitled to get the decree of divorce on the ground of desertion. The appellate Court also held that husband has not been able to prove that the behaviour of the wife caused mental cruelty to him and that he was entitled to get decree of divorce on the ground of cruelty. Accordingly appellate Court by the judgment and decree dated 31-7-84 set aside the judgment and decree passed by the trial Court on 24-2-82 and dismissed the husband's claim for dissolution of marriage and divorce.
4.Mr.Vaidya, learned counsel for the appellant took me through the judgment passed by the appellate court as well as the trial court to demonstrate that the appellate court was not justified in disagreeing with the findings recorded by the trial court. I have also perused the relevant evidence relating to the issue of mental cruelty.
5.At the outset, it may be observed that in the appellate court both the learned counsel for the parties placed reliance heavily on the judgment of this court Dastance v. Dastene, AIR-1970-Bombay-512 and the said judgment has also been considered by the trial court. However, it may be observed that the judgment of this court in AIR-1970-Bombay-512 went in appeal before the Apex Court and the Apex Court has set-aside the finding of this court in AIR-1970-Bombay-512 relating to cruelty under Sec. 10(1)(b) of the Hindu Marriage Act,1955. The judgment of the Apex Court in Dr.N.G.Dastane, Appellant v. Mrs.S.Dastane, Respondent, AIR-1975-Supreme Court-1534 dealing with the standard of proof in the cases of mental cruelty, in para-26 and 28 helds thus-
"26. Neither Section-10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor Section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is "satisfied" on matters mentioned in Cls.(a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word "satisfied" must mean "satisfied on a preponderance of probabilities" and not "satisfied beyond a reasonable doubt". Section 23 does not alter the standard of proof in civil cases.
28.In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in (1966) 1 All ER 524 at p.536 the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, "the case, like any civil case, may be proved by a preponderance of probability". The High Court of Australia in (1948) 77 CLR 191 at p. 210, Wright v. Wright, has also taken the view that "the civil and not the criminal standard of persuasion applies to matrimonial caused, including issues of adultery." The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty "beyond reasonable doubt". The High Court adds that "This must be in accordance with the law of evidence", but we are not clear as to the implications of this observation.
6.The Apex Court also extensively considered the meaning of cruelty and in para no.s 29,30,31,32 held thus-
"29. Then, as regards the meaning of "Curelty", The High Court on this question begins with the decision in Moonshee Badloor Ruheem v. Shumsoonnissa Begum, (1867) 11 Moo Ind App 551 where the Privy Council observed:
"The Mohmedan law, on a question of what is legal cruelty between Man and Wife, would probably not differ materially from our own of which one of the most recent exposition is the following :- "There must be actual violence of such a character as to endanger personal health or safely; or there must be a reasonable apprehension of it."
The High Court then refers to the decisions of some of the Indian courts to illustrate "The march of the Indian Courts with the English Courts" and cites the following passage from D.Tolstoy's "The law and Practice of Divorce and Matrimonial Causes" (Sixth Ed.,p.61);
"Cruelty which is a ground for dissolution of marriage may be defined as wailful and unjustifiable conduct of such a 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 High Court concludes that
"Having regard to these principles and the entire evidence in the case, in my judgment, I find that none of the acts complained of against the respondent can be considered to be so sufficiently grave and weighty as to be described as cruel according to the matrimonial law."
30.An awareness of foreign decisions could be a useful asset in interpreting our own laws. But it has to be remembered that we have to interpret in this case a specific provision of a specific enactment, namely, Section 10(a)(b) of the Act. What constitutes cruelty must depend upon the terms of this statute which provides:
"10.(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party-
(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party;"
The enquiry therefore has to be whether the conduct charged 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. It is not necessary, as under the English law, that the cruelty must be of such a character as to cause "danger" to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other.
31.The risk of relying on English decisions in this field may be shown by the learned Judge's reference to a passage from Tolstoy (p.63) in which the learned author, citing Horton v. Horton, 1940 p. 187 says:
"Spouses take each other for better or worse, and it is not enough to show that they find life together impossible, even if there results injury to health."
If the danger to health arises mearly from the fact that the spouses find it impossible to live together as where one of the parties shows an attitude of indifference to the other, the charge of cruelty may perhaps fail. But under Section 10(1)(b), harm or injury to health, reputation, the working-career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has prooved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.
32.One other matter which needs to be clarified is that though under Section 10 (1)(b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence for judging of matrimonial relations. Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a court incurring into a charge of cruelty to philosophise on the modalities of married life. Some one may want to keep late hours to finish the day's work and some one may went to get up early for a morning round of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion.
"The question whether the misconduct complained of constitutes cruelty and the like for divorce purpose is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances." American Jurisprudence, 2nd Edn., Vol.24, p.206. The Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown differences, their ideals attitudes any help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins, (1963) 2 All ER 966:
"In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people." _
7.The question of curelty as a matrimonial offence under the Hindu Marriage Act has to be of such character as to cause in mind of a spouse a reasonable apprehension that it would be harmful or injurious to live with other spouse. Obviously apprehension must be of a reasonable and prudent person. The spouse must have a fear in a mind that in a case he or she continues to live with other spouse, it shall be harmful or injurious to him or her. It is not the physical cruelty alone which is actionable but is mental Cruelty as well and that is why the Apex Court in the aforesaid decision clarified that it was not necessary as under the English law that the cruelty must be of such a character as to cause "danger to life, limb or health" or as to give rise to reasonable apprehension of such danger.
8.Applying the aforesaid legal position, it is to be seen whether any error of law has been committed by the appellate court.
9.The husband has relied upon the following circumstances to show that he has reasonable apprehension that if he continues to live with the wife that would be injurious and harmful to him-
(i)That the wife failed to accompany the husband to his native place khed for the purpose of religious function;
(ii)That the wife told the uncle of the husband in the month of March-78 that it was impossible for her to fulfil the matrimonial obligations with the husband;
(iii)That the father of the husband came to his house and the wife told his father on his face that he had come there to spoil the matrimonial relations between the two and that he should not reside with them;
(iv)That the wife was not worthy of a house-wife and she was not at all attending and looking after the husband. The wife would get up very late and would not even care for the husband;
(v)That the wife was asked about her salary but she refused to tell the same and asked the husband that it was none of his business;
(vi)That because of the behaviour of the wife, he had lost interest in her as wife.
10.I perused and considered the aforesaid allegations of the Petitioner and also read the deposition and the evidence, and I find that as regards the husband's grievance that wife failed to accompany him to his native place, there is plausible explanation by the wife that she was unable to take leave from office. When the wife was service-class woman, obviously she could not be expected to accompany the husband to his native place unless she get the leave from her employer. So far as first occasion to visit the native place of husband was concerned, the wife did accompany husband and both of them stayed there for some time. Thereafter in the absence of leave by the employer, it was not possible for the wife to accompany the husband second time to his native place and therefore, that circumstance cannot be considered as circumstance of mental cruelty, and, it cannot be said that the said act of the wife give rise to any actionable curelty. Regarding the instance that wife went to the uncle of the husband in March 78 and told him that it was impossible for her to fulfil the matrimonial obligations, suffice it to observe that uncle of the husband has been examined as PW-3 and he has not stated a word about last incident in March-78. Though the maternal uncle of the husband referred to various events but so far as the event of March-78 was concerned, PW-3 Shantaram Kulkarni did not state a word. Therefore, the husband's allegation against the wife that she told the uncle Mr.Kulkarni that it was impossible to fulfil matrimonial obligations had been rightly disbelieved by the appellate court. As regards the grievance of the husband that when his father came to his place at Khed, the wife told him that he had come to spoil the matrimonial relations of the parties, it may be observed that the evidence led by the husband is not reliable and there is total inconsistency in the evidence on this aspect. Besides that the father has not been examined by the husband. The appellate court, therefore, rightly observed that the evidence does not show any consistency and the instance was a got-up instance to show the ill-temper of the Respondent wife. I have no reason to take different view. So far as allegation of the husband against the wife that she was not a worthy housewife and she was not at all attending and looking after the husband was concerned, the allegation was absolutely vague and there was no reliable evidence in support thereof. The husband's further grievance is that on enquiry with the wife about salary she flatly refused to tell her salary and that she told him that it was none of his business does not appears to circumstance sufficient to cause reasonable apprehension in the mind of the husband that it was injurious to stay with the wife. Simultaneously the allegation in the petition about his health and the fact that he lost interest in her as wife has rightly been negatived by the appellate court.
11.All in all the appellate court has extensively considered the entire evidence and appreciation of the evidence by the appellate court appears to be just and proper. In case of Dastane v Dastane (supra) the Apex Court held thus-
"20.In judging of the conduct of the respondent, the High Court assumed that the words of abuse or insult used by the respondent "could not have been addressed in vacuum. Every abuse, insult, remark or retort must have been probably in exchange for remarks and rebukes from the husband............. a court is bound to consider the probabilities and infer, as I have done, that they must have been in the context of the abuses, insults, rebukes and remarks made by the husband and without evidence on the record with respect to the conduct of the husband in response to which the wife behaved in a particular way on each occasion, it is difficult, if not impossible to draw inference, against the wife."
21.We find this approach difficult to accept. Under Section 103 of the code of Civil Procedure, the High Court may, if the evidence on record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly deter
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mined by such court by reason of any illegality omission, error or defect such as is referred to in sub-section(1) of S.100. But, if the High Court takes upon itself the duty to determine an issue of fact its power to appreciate evidence would be subject to the same restraining conditions to which the power of any court of facts is ordinarily subject. The limits of that Power are not wider far the reason that the evidence is being appreciated by the High Court and not by the District Court. While appreciating evidence, inferences may and have to be drawn but courts of facts have to remind themselves of the line that divides an inference from guesswork. If it is proved, as the High Court thought it was, that the respondent had uttered words of abuse and insult, the High Court was entitled to infer that she had acted in retaliation, provided of burse there was evidence, direct or circumstantial, to justify such an inference. But the High Court itself felt that there was no evidence on the record with regard to the conduct of the husband in response to which the wife could be said to have behaved in the particular manner. The High Court reacted to this situation by saying that since there was no evidence regarding the conduct of the husband,"it is difficult, if not impossible, to draw inferences against the wife" If there was no evidence that the husband had provoked the wife's utterances, no inference could be drawn against the husband. There was no question of drawing any inferences against the wife because, according to the High Court, it was established on the evidence that she had uttered the particular words of abuse and insult". _ _ 12.While sitting in the second appeal this court will not reappreciate the evidence and the inferences drawn by the appellate court having been drawn on facts cannot be said to give rise to any substantial question of law. 13.The judgment passed by the appellate court is concluded on facts and finding recorded is proper and based on evidence on record warranting no interference in the second appeal. 14.Consequently the second appeal has no merit and is dismissed. 15.Since the Respondent has not put in any appearance, parties are directed to bear their own costs.