Urmila Bhat v. Sandupal Dutta

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN THURSDAY, THE 27TH DAY OF JULY 2017/5TH SRAVANA, 1939 Mat.Appeal.No. 661 of 2015 () -----------------------------FROM THE FIRST APPEAL NO.183/2009 OF THE HIGH COURT OF BOMBAY AT GOA AGAINST JUDGMENT DATED 8/5/2009 OF THE COURT OF THE CIVIL JUDGE, SENIOR DIVISION AT VASCO DA GAMA, IN MATRIMONIAL PETITION NO.27/2006B, ON TRANSFER TO THIS HONOURABLE COURT BY ORDER DATED 12/01/2015 OF THE HON'BLE SUPREME COURT OF INDIA IN TRANSFER PETITION (CIVIL) NO.2073/2013. APPELLANT: ---------- LT.CDR.URMILA BHAT D/O.MR.R.K.BHAT, AGED 33 YEARS, IN SERVICE AT AS MET OFFICER, INS RAJALI, ARAKKONAM, TAMIL NADU BY ADVS.SRI.GEORGE JACOB (JOSE) SMT.MEREENA JOSEPH RESPONDENT: ---------- LT. CDR.SANDUPAL DUTTA SON OF MR.KAMALENDU DUTTA, AGED 32 YEARS, IN SERVICE AT AS MET OFFICER, INS DEGA, NAD POST, VISAKHAPATANAM, A.P. R1 BY ADV. SRI.K.S.HARIDAS THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2017, THE COURT ON 27-07-2017 DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE, J & K.RAMAKRISHNAN, J** ## *** * * * * * * * * * * * * *** Mat.Appeal No.661 of 2015 ---------------------------------------Dated this the 27[th] day of July, 2017 ## **J U D G M E N T** ## **Shaffique, J** This appeal is filed by the respondent in a matrimonial petition No.27/2006 which was disposed of by the Civil Judge, Senior Division at Vasco Da Gama. An appeal was preferred by the High Court of Bombay at Goa. However, the appeal came to be transferred before this Court as per the directions issued as per order dated 12/01/2015 of the Apex Court in Transfer Petition (Civil) No.2073/2013. 2. During the pendency of the appeal, the learned counsel for the appellant had submitted that the whole case proceeds on the basis that the petitioner was not cross-examined by the learned counsel for the respondent and therefore the case stands proved. After hearing the learned counsel on either side and after perusing the records, we felt that an opportunity should be granted to the learned counsel for the appellant to crossexamine the petitioner in the case, and accordingly, by a separate 2 Mat.Appeal No.661/2015 order dt.14.02.2017 PW1 was recalled and his evidence was recorded by this Court and thereafter the matter has been heard finally. 3. The short facts that had arisen in the case are as under and the parties are referred to as shown in the petition. The matrimonial petition was filed by the petitioner under Section 13 of the Hindu Marriage Act, 1955. The couple got married on 06/12/2002. Allegation is that despite the marriage on 06/12/2002, respondent refused to live with the petitioner as she wanted to continue her studies for professional specialization at the Indian Meteorological Department, Pune. According to her, staying together would hamper her studies as the co-habitation as husband and wife would distract her concentration of her studies. They co-habited as husband and wife only after ten months of marriage and it was not with his consent. According to him, they had no physical relationship for about 1½ years of marriage. He alleges that the said erratic behaviour of the respondent has caused grave friction, disaffection and material discord in their life. Their physical relationship had been rare and even on such occasions, strained and unmeaningful. According to the Mat.Appeal No.661/2015 3 petitioner, respondent is an emotionally highly strung person and she often picks up quarrels for petty matters. He had to suffer physical assaults and has been subjected to being the object of flying brick-bats. He further contends that he has never dared to retaliate physically as to end the marriage as the respondent constantly threatened the petitioner with suicide and leaving behind notes to implicate him and or to file complaints before the police for dowry harassments. This, according to the respondent, amounts to extreme cruelty both physical, mental and psychological. They have been living separately since a long time and therefore, the petition is filed seeking divorce. 4. In the written statement filed by the respondent, she denied the aforesaid allegations. It is contended that both of them were deputed by Indian Navy to undergo Advanced Met specialisation course at IMD, Pashan, Pune. During July 2002, they were at Chilka (Orissa) and they developed a relationship. Both of them joined the training institute in September 2002 and were staying in IMD hostel, separately. After the marriage registration in December 2002 respondent applied for Government accommodation. Since the married accommodation Mat.Appeal No.661/2015 4 was not available, they had to reside at the respective hostel and permission was given for outside accommodation. However, the petitioner was not inclined to stay outside the institute and they opted to stay in the hostel itself. They were transferred from Pune to Goa in the month of October 2003 and they started staying under the same roof from the very first day of reporting and after staying for months together at INS Hansa, they also performed traditional marriage with all religious fervour from 23/02/2004 to 25/02/2004. Petitioner's entire family from Kolkata participated. According to her, if the petitioner has been dissatisfied, he need not have conducted the said marriage ceremony. She also denied the fact that they had no physical relationship or contact for about 1½ years. According to the respondent, she and the petitioner was having healthy sexual relation ever since the marriage. She further contends that upto April 2006, they continued their marital relationship and was cited as an example by the neighbours and others who were knowing them. There was no conflict between them. Since September 2006, she was transferred and posted at INS Rajali at Arakkonam where she was having family accommodation. At that time, Mat.Appeal No.661/2015 5 petitioner and the respondent were residing at Dabolim-Goa. It is further contended that though they were married, he was unwilling to take her to his parental home at Kolkata. Petitioner proceeded on leave to visit his home town at Kolkata on 30[th] April 2006. When he returned, the respondent noticed a remarkable change in his attitude towards her. The petitioner informed the respondent that he had a relationship with his college mate Kathika Sarkar and was interested to marry her. The respondent advised him not to take such an extreme step without reason. On 2[nd] May 2006, the respondent proceeded to Jammu to meet her parents. She returned from Jammu on 07/05/2006. On 11/05/2006, respondent talked to Mrs.Kathika Sarkar on phone and she pleaded not to wreck her marriage. Knowing about this, the couple had a heated exchange of words and he said that he would not share the room with her and started occupying a separate room in the quarter. According to her, the petitioner was pressurizing her to accord consent for mutual divorce through intimidation. On 26/05/2006, the parents of the respondent arrived at Dabolim. On 05/06/2006, with the permission of her parents, the respondent informed the Head of the Department of Mat.Appeal No.661/2015 6 Indian Navy about the whole incident and the agony faced by her and on 06/06/2006, the Head of the Department of the Indian Navy took pains to counsel both the petitioner and the respondent in an attempt to save the marriage. On 07/06/2006, petitioner was under transfer to INS Rajali, Arakkonam. On 11/06/2006, the petitioner packed his baggage and left for Chennai. On 15/09/2006, the respondent reached INS Rajali, Arakkonam along with her father on permanent transfer. On the same day, the petitioner left to Delhi. He returned on 21/09/2006 and stayed at his bachelor's accommodation. She alleges that the petitioner was having illicit relationship with his classmate, Kathika Sarkar who was a married woman. 5. The Family Court, by the impugned judgment, observed that though the petitioner was examined in the case, he was not cross-examined by the respondent. The witness of the petitioner also corroborated the case of the petitioner that the respondent was high strung and domineering and used to say vicious and insulting things to the petitioner even in his presence. After analysing the evidence of both the parties, it was found that making allegations of illicit relation of the petitioner with the lady Mat.Appeal No.661/2015 7 by name Kathika itself amounts to mental torture and cruelty and therefore the petitioner was entitled for a decree for divorce. 6. As far as the appreciation of evidence is concerned, the learned counsel for the appellant sought for re-appreciation of the evidence especially in the light of the fact that PW1 has been cross-examined as per the directions issued by this Court. PW1 during cross-examination admitted that he knew Smt.Kathika Sarkar. They were class mates at the College of Engineering. He also admits that once in a while he used to communicate with the lady through e-mail. He further admits that he married Kathika Sarkar on 09/12/2009. He also denied the suggestive question that at the time of submitting the chief affidavit on 09/08/2007, he was having illicit relationship with Kathika Sarkar. 7. The only question to be considered is whether the petitioner has proved the case set up by him as far as cruelty is concerned. The facts available in the case would disclose that the petitioner and the respondent got married on 06/12/2002. But they were living in two different hostels. They got a transfer to Goa in October 2003 and they were living together. They contracted a traditional marriage on 23/2/2004 as well in Jammu 8 Mat.Appeal No.661/2015 in the presence of both the families. Both of them were transferred to INS Rajali Arakkonam (Tamil Nadu) as per an order dated 07/06/2006. Petitioner left for Chennai on 11/06/2006 and the respondent on 15/09/2006. The petitioner filed the petition for divorce in December 2006. The cruelty alleged is basically mental torture. Other than the oral testimony of PW1, another witness was examined as PW2. In his affidavit in chief, PW2 states that he knew the petitioner since 2001. They were serving together during their training in INS Mandovi. He knew the couple as family friends and according to him, the marriage was never a happy one. They often quarrelled and though he tried to intervene, there was no success. It is stated that the respondent was high strung and domineering and used to say vicious and insulting things to the the petitioner during their quarrel. According to him, the petitioner used to visit his house feeling miserable and desperate due to the fights and even disclosed to him that he wanted to quit service to escape the mental torture and harassment he was facing from the respondent. He also refers to a private function where the respondent picked up a quarrel with the petitioner on a small matter and insulted him and Mat.Appeal No.661/2015 9 left the place leaving him behind. Ultimately he had to drop him at his residence and the said incident had caused much embarrassment and shame to the petitioner. In crossexamination, the suggestion was that his evidence was false, which he denied. He also denied the suggestion that he was giving evidence to help his friend. 8. The evidence of PW2 would only show that there was some incident by which petitioner was totally unhappy and he had witnessed a scene by which the respondent had behaved in a quarrelsome manner and she left in the vehicle without taking him. The appellant/respondent also gave evidence by filing an affidavit reiterating the contentions urged by her in the written statement. According to her, she has never been communicated about any erratic behaviour, as alleged by the petitioner. She denied having committed any sort of cruelty to the petitioner. She further stated that the petitioner was unwilling to take her to his parental home at Kolkata though she had expressed her desire to visit her matrimonial home. She further deposed that she noticed a remarkable change in the petitioner's attitude towards her when he returned from Kolkata on 30[th] April 2006. He informed her 10 Mat.Appeal No.661/2015 about the relationship he had with a college mate by name Kathika Sarkar and that he was interested to marry her. Thereafter, he started insisting for a mutual separation by divorce. On hearing the news, her parents were also shocked. She also spoke to Kathika Sarkar on 11/05/2006 and pleaded with her not to wreck her marriage. As a retaliation, the petitioner became very furious and raised his hand to hit her. The evidence proceeds on the basis that the petitioner was insisting for a mutual divorce and according to her, it is on account of the fact that the petitioner was maintaining illicit relationship with Kathika Sarkar. He was also contacting her over phone and e-mail. She was cross-examined in detail by the learned counsel for the petitioner. DW2 is the father of the appellant/respondent. In his evidence, he had stated that he had not heard any complaint regarding her marital life. It is stated that on 04/05/2006, she had come to Jammu and looked very disturbed and on enquiry it was noticed that there was something disturbing her. On enquiry she revealed that the petitioner was having relationship with another woman and it had shocked them. Mat.Appeal No.661/2015 11 9. The cruelty pleaded and proved in a case for divorce should be of a nature that the spouse claiming divorce cannot properly live with the other spouse or that the life becomes miserable and intolerable. Minor quarrels should not affect the marital life and a casual discord between the couple does not amount to cruelty. Cruelty alleged and proved should be of such a nature that it becomes absolutely intolerable for a spouse to live with the other spouse. The position of law in this regard is well settled by judgment of the Apex Court in **Samar Ghosh v. Jaya Ghosh** _**,** [(2007) 4 SCC 511]_ and the instances of cruelty has been narrated by the Apex Court in paragraph 101 which reads as under: _“_ _**101.** No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour 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._ Mat.Appeal No.661/2015 12 _(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 behaviour 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._ Mat.Appeal No.661/2015 13 _(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 behaviour 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 sterilisation 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_ Mat.Appeal No.661/2015 14 _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.”_ 10. In the petition, no specific allegation has been made with reference to any incident or its date and time. General allegations are seen made stating that the respondent was behaving in an erratic manner which caused grave friction, disaffection and material discord in their life. He also has a case that she is emotionally high strung person and often picks up quarrels for some petty matters. In his evidence in chief examination also he states about the incident with reference to which he has made allegations. He had been effectively cross examined by the other side also. In a way petitioner contends that because of the peculiar nature or behaviour of the Mat.Appeal No.661/2015 15 respondent towards the petitioner, he is unable to lead a proper married life. This fact is supported by the evidence of PW2 also. But, it is relevant to note that the instances pointed out by PW2 has not been pleaded by the petitioner. The pleading is general in nature. No specific instances have been pointed out to infer cruelty. In the petition, his contention is that they first started cohabitation as husband and wife only after 10 months of their marriage and that too, without his consent. The second contention is that they did not have physical relationship thereafter for about 1½ years. Paragraph 4 describes about her erratic behaviour causing friction, disaffection and material discord and that their physical relationship were rare. Paragraph 5 speaks about the attitude of the respondent picking up quarrels for petty matters for which he had to suffer physical assaults. No specific instances have been pointed out which led to the alleged mental cruelty or any instance which caused mental harassment to him. In instances where there is an allegation of cruelty either physical or mental, specific instances are to be described, which is lacking in the case on hand. Only in evidence he had taken up a contention that she used to insult him especially making a joke Mat.Appeal No.661/2015 16 of him taking into account the fact that she is superior in rank and he also had given evidence regarding the allegations made by his wife about the relationship with Kathika Sarkar. As already indicated, PW2, the witness and on bahalf of the petitioner, spoke about an incident and his impression was that the marriage was not proper. In the evidence of respondent, she denied the fact that there is any serious matrimonial issues between the parties. It is stated that the discord started when the petitioner informed his relationship with Kathika Sarkar and it is to save the marriage, she had phoned Kathika Sarkar and had taken other steps in the matter. 11. The Family Court had granted a decree of divorce on the basis of the admitted case of the respondent that she had made allegations against the petitioner about the illicit relationship with Kathika Sarkar. This, according to the Family Court, amounts to mental cruelty to the petitioner. 12. The Family Court, however, had not given any finding regarding any other acts of cruelty, mental or physical from the side of the respondent. The moot point therefore would be whether such allegations made by the wife against the husband in Mat.Appeal No.661/2015 17 the facts of the present case would result in mental cruelty or not. 13. It cannot be disputed and as held by the Apex court in **Vijay Kumar Ramachandra Bhate v. Neela Vijaya Kumar Bhate** _[(2003) 6 SCC 334]_ , after referring to various judgments in **Dr.N.G.Dastane v. Mrs. S.Dastane** [ _AIR 1975 SC 1534]_ and **V.Bhagat v. D.Bhagat (Mrs.)** _[(1994) 1 SCC 337]_ , levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. To satisfy the requirement of clause (ia) of sub section (1) of Section 13, the cruel treatment is not required for any particular duration or period. It does not depend upon the numerical count of such incidents or only on the continuous course of conduct, but, the cruelty should 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. In **Srinivas Rao K. v. D.A.Deepa** _[(2013) 5 SCC 226]_ , the Apex Court further held that making unfounded, indecent and defamatory allegations against spouse which may 18 Mat.Appeal No.661/2015 have an adverse impact on the job of the spouse amount to causing mental cruelty. In the case on hand, the contention of the learned counsel for the appellant is that the fact that the petitioner had illicit relationship with Kathika Sarkar is proved by a subsequent conduct of marrying that lady. The point is whether the petitioner had any such illicit relationship with Kathika Sarkar during the matrimonial relationship. Merely for the reason that the petitioner married Kathika Sarkar after the divorce, is not sufficient to prove the fact that earlier he was having an illicit relationship with her. 14. In fact, in the original petition, the petitioner did not plead any such allegation being made by the wife. However, in her written statement, she had stated about the relationship the petitioner was having with Kathika Sarkar as a reason for seeking divorce. According to her, he wanted a divorce by mutual consent, which she denied and therefore he had approached the Family Court. It is her further case that she was aware that Kathika Sarkar was a college mate of the petitioner and the petitioner had referred her name earlier. But she had no doubt at all. Only on 30/04/2006 when the petitioner had come back from Mat.Appeal No.661/2015 19 Kolkata that he divulged that he would like to marry Kathika Sarkar. She also placed reference to the e-mail communication to prove that there was illicit relationship between the petitioner and Kathika Sarkar during the marital tie. PW1, while being crossexamined before this Court denied any such relationship. He deposed that he did not have any regular contact with Kathika Sarkar after he left the institution in the year 2000. However, he admitted that he used to contact her once in a while. He denied the suggestion that he had regular contact with her. According to him, he used to communicate her through e-mail once in a while. To a question as to whether he was having any illicit relationship with Kathika Sarkar, while submitting the chief affidavit on 02/05/2009, he denied the said suggestion. From the evidence of pleadings and evidence of respondents and from the nature of cross examination, it is rather clear that the parties had dispute among themselves in the name of Kathika Sarkar. It is also true that after decree of divorce had been granted, the petitioner married Kathika Sarkar. In order to prove that they were having illicit relationship during the marital relationship, the appellant had given evidence by producing photograph of SMS messages 20 Mat.Appeal No.661/2015 sent by Kathika Sarkar. But, in her cross-examination, she submits that in the message reflected in the mobile the address of her husband will not be seen. She deposed that the mobile phone belong to her and her husband and no other person had access to the same. She further deposed that anyone who had knowledge about the mobile number can communicate the said messages. She, however, submits that the mobile number displayed on the photograph marked as Ext.C26 belongs to Kathika Sarkar as the number was saved on the old sim card of her husband and she knew it. In her evidence, she actually confirmed that the SMS messages had been sent to the petitioner. But in this regard, other than the deposition of RW1, there is no other material to arrive at a conclusion that the petitioner was having any extramarital illicit relationship with Kathika Sarkar. He admits that he was friendly with Kathika Sarkar and she was his college mate and that he had married her after the divorce. Taking into consideration the overall factual circumstances involved in the matter, we are of the view that there is no evidence to arrive at a finding that the petitioner was having any extramarital relationship with Kathika Sarkar while the marital Mat.Appeal No.661/2015 21 relationship with the respondent/appellant was continuing. Under such circumstances, making allegations of illicit relationship with another person and picking up quarrel on that ground after making the living of the respondent with appellant impossible will amount to mental cruelty and that is a ground for granting divorce, which the Family Court has correctly considered the evidence and granted a decree for divorce accordingly. 15. It can further be seen that the parties to the marriage have been separated since 2006 and they have been living separately. After the divorce, the petitioner married Kathika Sarkar. In other words, the marriage with the respondent has become irretrievably broken and there is no chance for re-union. Hence, we do not think that this is a fit case in which this Court should interfere. Since no grounds are made out to interfere with the judgment of the Court below, this Mat.Appeal is dismissed. Parties shall bear their own costs. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) ## **(K.RAMAKRISHNAN, JUDGE)** jsr