Court:DELHI HIGH COURT
Bench: JUSTICE Leila Seth
UMA BASSI Vs. ANIL KUMAR BASSI On 21 October 1982
Wife Alleging Husband of an Incestuous Relationship with his Cousin Sister Amounts to Cruelty.
This is a wife’s appeal against the decree of dissolution of marriage granted by the Additional District Judge, Delhi on 8th April, 1982. The decree of divorce was granted on the ground of cruelty.
2. The case of Anil Kumar Bassi, the respondent is: He and Uma, the appellant were married at Delhi on 22nd April, 1978. The marriage was solemnized according to Hindu rites. They lived together at B-3/220, Lawrence Road, M.I.G. Flats, Delhi. Uma had a baby on 5th September, 1979 but unfortunately the child was still-born. On 28th September, 1979 Uma left for London with her parents. Since then she has been staying with them in London as her father is posted with the Indian High Commission there.
3. On 2nd November, 1979 the respondent Anil also went to London on a return air ticket. Uma’s parents provided him with the said ticket. In London, Anil resided with his parents-in-law. He took up a job in London. However, he was taunted and ill treated by all the family members. Apart from this, he was not permitted to live in a separate room with Uma. Uma never permitted him to have any sexual intercourse with her. His attempts to reside with Uma separately were frustrated by Uma and her parents.
4. As matters became very unpleasant, he left the house of his parents-in-law and went to reside with his cousin sister Mrs. Tripta Dhir on 3rd April, 1980. He asked Uma to join him. She failed to do so. On 29th June, 1980 he returned to India. He was mentally anguished by all this behaviour. Added to this, Uma made a false accusation that he was having an incestuous relationship with Mrs. Tripta Dhir. The relationship between him and Uma had become so strained that it was impossible for them to live together especially as she had not permitted him to have any sexual intercourse with her after she left India for London on 28th September, 1979.
5. On his return to India, Anil had an advocate’s notice dated 9th March, 1981 sent by registered acknowledgment due post to Uma setting out facts. This is Ext. P. 1. On 3rd April, 1981 Uma sent a reply (Ext. P. 3). She asserted, inter alia, that Anil’s cousin sister was an evil influence and instrumental in creating a permanent breach in their marriage.
6. Thereafter he filed a petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (to be referred to in short as the Act”) on 25th August, 1981.
7. Uma filed a reply. She stated that Anil and members of his family made her life miserable when she gave birth to a dead child on 6th September, 1979. It was in these circumstances that her father took her away with him to London where he was posted. According to her, when Anil came to London he was treated with respect and in fact, her father helped him to find a job. However, he left their home on 3rd April, 1980 and went to live with Mrs. Tripta Dhir for reasons best known to him. She mentions also that she went there but was beaten up and had no choice but to return to her parents’ home. However, she has not challenged specifically the fact that she and Anil were not sharing a room and that there was no sexual intercourse between them. She has also not challenged the fact that allegations were made by her and her family with regard to an incestuous relationship between Anil and his cousin sister Mrs. Tripta Dhir.
8. Thereafter evidence was led on Anil’s behalf on 15th February, 1982 his evidence was closed. The matter was adjourned to 15th March, 1982 for Uma’s evidence. She did not lead any evidence on that date, but an application under Section 24 of the Act was moved on her behalf. A reply was filed on 16th March, 1982 and the matter was heard on the same date. In the application under Section 24 of the Act Uma prayed for an amount of Rs. 10,000/- to be paid to her as her air fare to come and contest the litigation. In the reply it was asserted that she was working as a sales representative at London and earning more than £ 50 per week That she had a bank account where she had more than Rs. 60,000/-. Whereas Anil’s income was averging between 500-600 per month and his parents were dependent on him.
9. The Additional District Judge held that in view of the fact that Anil was earning only about Rs. 500/- and his aged parents were financially dependent on him, it would not be possible for him to provide Rs. 10,000/ to Uma as travelling expenses. She had not claimed any pendente lite maintenance. The application was accordingly dismissed. The matter was then fixed for her evidence on 22nd March, 1982.
10. On 22nd March, 1982 another application was moved on behalf of Uma. It was prayed therein that she may be permitted to give evidence by way of affidavits as she could not appear in person. That was opposed by Anil’s counsel as it was submitted that he would be then deprived of the opportunity of cross-examination. In the circumstances, the court did not find any justification for granting any further opportunity. The evidence was thus closed.
11. The judgment was delivered on 8th April, 1982. The trial court held that “desertion” had not been established as the essential ingredient of living separately for more than two years immediately preceding the presentation of the petition had not been made out. The issue was, therefore, decided against Anil.
12. However, the learned Judge held that Uma had treated Anil with cruelty and he was entitled to a decree of divorce on that ground.
13. Mr. P.P. Juneja, learned counsel appearing for the appellant has contended that Uma was not given a proper opportunity to defend herself. According to him, the non granting of the sum of Rs. 10,000/- to Uma as expenses for coming to India has prejudiced her case. I do not agree. The learned Additional District Judge considered the matter and held that Anil was not in a position to pay the large amount as travel expenditure, whereas Uma had the means.
14. Counsel’s further submission is that the cumulative conduct of Uma does not amount to cruelty, and this could have been examined in the light of Exts. R 1 to R 7 put to Anil in cross-examination.
15. In the present case certain facts are admitted. It is admitted that the parties lived together after marriage on 22nd April, 1978 at Delhi and were living as husband and wife till 28th September, 1979 when Uma left with her parents for London. It appears from the correspondence and other evidence that sometime in September, 1978 Uma’s parents left for London as her father was posted there. Thereafter letters dated 2nd February, 1979, 26th May, 1979 and 31st August, 1979 indicate that both the parties wanted to go to London and try and make good there. They wrote to Uma’s parents to try and help them in his venture and arrange an air ticket for them. On 5th September, 1979 when Uma gave birth to a still-born child it appears that her parents came from London and took her there on 28th September, 1979. Subsequent letters dated 1st October, 1979, 4th October, 1979, 11th October, 1979 and 25th October, 1979 indicate that Anil was extremely anxious to go and join her in London and was pressing her and her parents to send him an air ticket for this purpose. It was as a result of this pressure and desire on the part of Anil that an air ticket was sent to him and he also went to London on 2nd November, 1979. The correspondence is Exts. R 1 to R 7. But the problem seems to have started thereafter. While in London and living with his parents-in-law he states he was not permitted to live in the same room with his wife. His wife lived in a room with her sister and he lived in a room with his brother-in-law. His wife would not go out with him. She would not spend time with him. He was mentally frustrated at being deprived both of the sexual relationship and the society of his wife. He suggested that they rent a separate accommodation but she did not agree to this. When matters became unbearable due to the taunts of his wife and her family members, he shifted to his cousin’s house. He pursuaded his wife to go with him but she returned the very next day and thereafter refused to have anything to do with him. She levelled false accusations of an incestuous relationship between him and his cousin sister Tripta. She tried to defame him in the eyes of his parents. Her father wrote certain letters to this end to his father Ext. P 6 and Ext. P 7. She also wrote to her father-in-law Exts. P 4 and P 5. According to Anil, Tripta was older than him and had been living in London for the last twenty years. Her nephew was also staying with her at the time Anil went to reside with her. He categorically denied that he was having illicit relationship with her.
16. As already, noticed Uma has in her pleadings not specifically denied the lack of social and sexual contact nor the making of the accusation of an incestuous relationship with Tripta. Further in Ext. P.3 she states that the cousin sister was instrumental in creating a breach in her marital life. Exts. P6 and P7 written by her father clearly indicate and make an accusation of infidelity. The letter written by Uma’s father Ext. P.W. 2/1 to Anil’s brother also is to the same effect.
17. The crux of the husband’s complaint is that he was ill treated by Uma and her family in London. Uma denied him all sexual and social contact since 28th September, 1979. She and her family also accused him of an incestuous relationship with Mrs. Tripta Dhir, his cousin sister.
18. Does this amount to unpardonable conduct so grave and weighty that no reasonable person would tolerate it ? Or is it within the ambit of normal wear and tear of marriage ? It would appear to me the former, Marriage is a partnership of togetherness and sharing. When there is no sharing of company and time or even sexual activity the marriage looses its essence and flavour. It becomes saltless and soulless.
19. In S.L. Gupta v. Smt. Swaran Lata Gupta, I (1981) DMC 92=18 (1980) DLT 15, Avadh Behari, J. has opined that before conduct can be called cruel, it must reach a certain pitch of severity.
20. This pitch of severity has been reached in this case, because added to a denial of sexual and social intercourse, the barbed arrow of an incestuous accusation has been flung at the husband. Cruelty does not consist of physical violence alone. The mental torture and agony that can be brought about by such a situation can sometimes be more painful.
21. In Smt. Lajwanti v. O.N. Chandhok, II (1981) DMC 97, Mr. Justice M.L Jain has observed that cruelty consists not in the conduct complained of but in its impact upon the spouse. A callous indifference to the feelings of the husband can be nothing but painful in the extreme.
22. It is, therefore, clear that the injurious reproaches, taunts and accusations especially alleging an incestuous relationship, coupled with the deprivation of social and sexual intercourse is such conduct that amounts to treating the respondent with cruelty. The consideration has necessarily to be cumulative and not compartmental.
23. Mr. Juneja’s further submission is that in order to establish the matrimonial offence of cruelty, it must be such cruelty as results in danger or apprehension to life or limb or is injurious to health. I do not find any force in this contention.
24. The amended provisions of the Act make the position clear. Prior to the Marriage Laws (Amendment) Act, 1976, cruelty was not a ground for divorce. It was only a ground for judicial separation. Section 10(1) dealing with the grounds for judicial separation provided that……..“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 amended Section 13 which now makes cruelty a ground for divorce reads as follows :
“(1a). Has, after the solemnization of the marriage, treated the petitioner with cruelty”.
There is clear change in the language of the statute. Therefore, what has to be established is that the offending spouse has “treated” the petitioner with cruelty. This is a matter of interaction between the parties and depends on the circumstances of the case and the extent of endurance.
25. Nor can it be said, as Mr. Juneja pleads, that though accusations of infidelity may be conduct which amounts to cruel behaviour if a wife is subjected to it by her husband but will not be cruel conduct if a wife metes it out to her husband. I do not think that women have a monopoly of sensitivity ; men can be as sensitive to accusations and allegations of infidelity. It all depends on the personality of the individual and not the sex.
26. For the reasons outlined above, I hold that the conduct of this woman amounted to cruelty. Further, as the real rupture appears to have taken place in London, the correspondence i.e. Exts. R1 to R7, dealing with the desire of the parties to go there, is not really material.
27. In this view of the matter, I endorse the findings of the trial Court and dismiss the appeal with costs.