In the High Court of Gauhati

Decided on March 26, 2019, [Date of Hearing: 26.03.2019]

Appellants: Gopesh Deka

Vs
Respondent: Phul Kumari Deka

Facts of the Case:

Appellant

 The marriage between Gopesh Deka (appellant) and Phul Kumari Deka
(respondent) was solemnized on 5th August, 2011 under the Hindu Marriage Act.
 A male child was born to them on 1st September, 2012.
 The appellant claimed that the respondent behaved in a rude manner with the
appellant and also with the parents and sister of the appellant.
 It was further claimed by the appellant that his sister was assaulted by the
respondent and an FIR had been lodged in that regard.
 It was also contended that the appellant’s parents had been physically assaulted by
the respondent.
 According to the appellant, the respondent had left her marital home on 30th
December, 2011, (4.5 months after marriage), and had not returned after that.
 The appellant further claimed that after leaving the marital home the respondent
had not shown any intention of returning back.
 On the basis of the above facts the appellant filed a Hindu Marriage Act (H.M.A)
petition against the respondent under the Section 13(1) (ia) of the Hindu Marriage
Act, 1955, seeking dissolution of the marriage.

Respondent

 A detailed written statement denying the allegations was filed by the respondent.
 The respondent claimed that it was the appellant who had behaved in a cruel manner.
 It was further claimed that a complaint was filed against the appellant by the respondent
under Section 498-A of IPC though the appellant was acquitted in the proceeding.
 In the written statement all the allegations made against the respondent was denied.
Grounds for Divorce

The grounds for divorce were under the Hindu Marriage Act, 1955, Section 13(1) (ia) which is
cruelty.

Cruelty (i-a)

One of the ground on the basis of which the matrimonial relief in divorce can be claimed is
“Cruelty”.

In layman’s language, cruelty implies violent behavior. In legal world, the concept of cruelty is
much wider. There can be the presence of cruelty even in the absence of any kind of physical
violence or causing of bodily hurt or any kind of danger to the person. Mental cruelty is also
recognized as cruelty in law.

Initially, Cruelty was not applicable for Divorce and was considered as a ground only for Judicial
Separation under Section 10 of Hindu Marriage Act, 1955. By the amendment of 1964, it became
possible to obtain a decree for divorce, 2 years after the decree of judicial separation, if
cohabitation was not resumed during that period. By the amendment of 1976, the waiting period
was reduced to 1 year. New Section 13 (1) (ia) was introduced to make “cruelty” a ground for
divorce.

The word “Cruelty” has not been defined under the Hindu Marriage Act, as a result it is prone to
interpretation based on various facts under different set of circumstances. For the purpose of
Section 13(1) (ia) of the Act, cruelty may be mental such as indifference towards the
husband/wife, denial of a company to him/her, hatred and abhorrence, or physical like act of
violence and abstinence from sexual intercourse without reasonable cause. As to what constitutes
the required cruelty will not depend upon the numerical count of any of the incident or only in
the continuous course of such conduct but will go by the intensity and gravity of it, even if meted
out once. Cruelty cannot be judged by an isolated incident. Social Status of the parties is always
taken into account.

The expression ‘Cruelty’ has an inseparable nexus with human conduct. It is always dependent
upon the social strata to which the party belongs, their way of life, relationship, temperaments
and emotions. A set of fact called as cruelty in one case may not be so in another case. The
cruelty alleged may largely depend upon the type of life the parties are accustomed to, or their
economic and social conditions. It may also depend upon their culture and human values.

What is not Cruelty? The ordinary wear and tear of the family does not account to cruelty.
Issue(s):
  Is there any cause of action?

 Was the plaintiff subjected to cruelty by the defendant?

 Is the plaintiff the wrongdoer?

 Is the plaintiff entitled to decree as prayed for?

 To what other reliefs are the parties entitled to?

Decision of the court:

Trial Court
 The case was filed in the Family Court, Barpeta, Assam in 2015
 The court took a note of the evidence available on record and analyzed the same
keeping in view the legal position.
 Hence, the petition was dismissed by the family court on 26th May, 2015.
 The marriage was not dissolved by the court.

High Court

 Aggrieved by the judgment of the trial court, the appellant escalated the matter to
the High Court in 2018.
 The court after having taken note of the evidence arrived at a conclusion that the
appellant has failed to prove the allegations against the respondent.
 Hence, the court dismissed the petition filed by the appellant under the Section 13
(1) (ia) of the Hindu Marriage Act, 1955, on 26th March, 2019.
 The marriage was not dissolved.

Analysis of the Decision of the Court:

The judgment of both the Trial Court and the High Court came to an apt conclusion over the
proceedings of the case. They looked deeply into the matter and ensured that all the facts where
present. They took a note of the evidences available on record and analyzed the same keeping in
view the legal position.

The appellant seeked for a decree of divorce on the ground of cruelty. He made allegations on
the respondent stating physical assault by her on his parents and sister. But this allegation could
not be established by the evidence. During the cross examination the appellant admitted that the
respondent still possesses both the mental and the physical ability for the continuation of her
conjugal life. Also he had admitted that he had nowhere mentioned in the evidence that his sister
was assaulted by the defendant.

Even during the examination of the evidence of the appellant’s first witness, there was no direct
allegation on the respondent amounting to cruelty. Infact during the cross examinations the
appellant’s witness admitted that both the parties have the capacity to continue their conjugal life
and also in his presence he had never witnessed any sort of physical assault between the parties.
Also the appellant’s second witness stated that he and the appellant had tried to bring the
respondent back home as she bears all the qualities of a woman with whom one would want to
spend a conjugal life.

The evidences which were produced by the appellant himself showed that the differences
between the parties are not that it could be considered as a broken marriage. And hence a decree
of divorce could not be granted. Also the respondent had failed when she had filed a proceeding
against the appellant under Section 498- A of IPC.

In view of all the above instances, the High Court was of the opinion that the Judgment by the
Trial Court need not call for inference. And hence a Decree of Divorce was not entitled.

Judicial Approach in the Previous Judgments:

 Bismita Saikia v. Pranjal Dutta, 2018 (3) GLT 420

In this case the appellant claimed that the respondent had assaulted the
mother and the sister of the appellant and had also used filthy language.
The evidences produced in this case established the allegations and
accordingly the decree of divorce was granted.

But in the case of Gopesh Deka v, Phul Kumari Deka, The evidences
produced were not sufficient to establish the allegations made.
Hence the decision of this case cannot be taken as assistance.

 Malthi Ravi M.D. v. b.v. Ravi M.D. (2014) 7 SCC 640

In this case the evidences produced through records indicated that there
were instances of mental cruelty and hence the Hon’ble Supreme Court
granted the decree of divorce.
But in the case of Gopesh Deka v, Phul Kumari Deka, The allegations
were regarding physical cruelty.
Hence the decision of this case cannot be taken as assistance.

 Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511

In this case the Hon’ble Supreme Court has laid down that, if there stands
a long period of continuous separation, and then the marital bond is
beyond repair. Hence A decree of Divorce was granted.

But in the case of Gopesh Deka v, Phul Kumari Deka, The witnesses
and also appellant stated that the parties could still led a conjugal life.
Hence the decision of this case cannot be taken as assistance.

 According to the Decision by the learned single judge of Punjab and

Haryana High Court AIR 1996, the filing of a complaint against the
husband under Section 498 A of IPC can be considered as a ground of
mental cruelty.

But in the case of Gopesh Deka v, Phul Kumari Deka, The evidences
provided through records had proved the instances of cruelty, thereby
 taking into consideration the filing of complaint under Section 498-A
of IPC. Hence the decision of this case cannot be taken as assistance.

 Shyam Sundar Kohli v. Sushma Kohli Alias Satya Devi, (2004) 7 SCC
747

In this case the Hon’ble Supreme Court held that the mere irretrievable
breakdown of marriage cannot be considered as a ground for divorce.

Hence in the case of Gopesh Deka v, Phul Kumari Deka, mere

irretrievable breakdown of marriage cannot be a ground for
dissolution of marriage.

Approach of the Legislature:

 Section 13 (1) Hindu Marriage Act, 1955

1. Any marriage solemnized, whether before or after the commencement of this

Act, may, on a petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other party :

i. has, after the solemnization of the marriage, had voluntary sexual

intercourse with any person other than his or her spouse; or

i.a has, after the solemnization of the marriage, treated the

petitioner with cruelty; or
i.b has deserted the petitioner for a continuous period of not less
than two years immediately preceding the presentation of the
petition; or

ii. has ceased to be a Hindu by conversion to another religion; or

iii. has been incurably of unsound mind, or has been suffering

continuously or intermittently from mental disorder of such a kind
and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.
Explanation –

In this clause, —

a.   the expression “mental disorder” means mental illness, arrested or incomplete

development of mind, psychopathic disorder or any other disorder or disability of
mind and includes schizophrenia;

b. the expression “psychopathic disorder” means a persistent disorder or disability of

mind (whether or not including sub-normality of intelligence) which results in
abnormally aggressive or seriously irresponsible conduct on the part of the other
party, and whether or not it requires or is susceptible to medical treatment; or

c. has  been suffering from a virulent and incurable form of leprosy; or

d. has  been suffering from venereal disease in a communicable form; or

e.   has renounced the world by entering any religious order; or

f. has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of it, had that party been alive;

Explanation:

In this sub-section, the expression desertion means the desertion of the petitioner by the
other party to the marriage without reasonable cause and without the consent or against
the wish of such party, and includes the willful neglect of the petitioner by the other party to
the marriage, and its grammatical variations and cognate expressions shall be construed
accordingly.

 Section 498A in The Indian Penal Code

 Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being

the husband or the relative of the husband of a woman, subjects such woman to cruelty
shall be punished with imprisonment for a term which may extend to three years and
shall also be liable to fine. 
Explanation:

For the purpose of this section, “cruelty” means,

a.   any willful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or

b. harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security
or is on account of failure by her or any person related to her to meet such demand.

Suggestions for Improvement of Current Situation:

The word “cruelty” has not been defined under the Hindu Marriage Act, 1955, making it prone to
interpretation based on different factors under different circumstances. What may be cruelty to
one cannot be a cruelty to another and vice versa. Sometimes misinterpretation can lead to unjust
and unfair decision. This also increases the risk of Judicial law making. Interpretation of the
meaning of a word leds to a lot of confusion.

For instance, In case of Criminal Law, the word cruelty is defined as including harassment of the
woman to coercing her or her relations to meet an unlawful demand for any property. Since the
word cruelty is defined under criminal law, it is not at all prone to interpretation. What amounts
to cruelty in criminal law to one will be similar to another. But in case of Personal Laws, Cruelty
has various definitions, creating chaos.

So defining Cruelty under Hindu Marriage Act can be change which could be introduced.