- (1.) The appellant - husband has preferred Family Court Appeal No. 48 of 2006 against the judgment and order of the IInd Family Court at Bandra, which allowed the respondent - wife's petition for divorce (Petition No. A-436/1999) on the ground of cruelty and dissolved the marriage between the parties. The learned trial Court had consequently dismissed the petition filed by the appellant, after the petition for divorce was instituted against him, for restitution of conjugal rights (Petition No. A-624/1999). The learned counsel for the appellant has stated before us that he is not pressing the appeal against the dismissal of the said petition, viz., Family Court Appeal No. 49 of 2006, for restitution of conjugal rights. Accordingly, Family Court Appeal No. 49 of 2006 stands disposed of as not pressed.
(2.) The parties were married on 17-4-1998 in Mumbai. They cohabited for a period of 45 days. Apparently, the respondent left the appellant's company on 3-6-1998, due to the cruel treatment he meted out to her, and the parties have not cohabited ever since. With a view to see if a settlement or reconciliation was possible, at this stage, we interviewed the parties in chamber and found that no reconciliation is possible between them.
(3.) In deciding whether there is any merit in the appeal of the appellant -husband against the order of divorce granted against him on the ground of cruelty under section 13(1) (ia) of the Hindu Marriage Act, it is to be examined whether the behaviour of the appellant towards the respondent falls within the legal conception of cruelty. As defined by the Hon'ble Apex Court in Dastane vs. Dastane, 1975 2 SCC 326 and reiterated in several decisions thereafter : "The enquiry has to be whether the conduct charged as cruelty is of such 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..." According to the respondent, from the date of marriage itself, she was subjected to physical and mental torture and repeated humiliation. Before the Court, the respondent deposed to and gave evidence of several instances of cruelty. One instance was on 20-4-1998, when the respondent was abused by the appellant in front of several people at Tirupati because a toe-ring that she had worn had fallen off and was lost. On another occasion, when the parties were at a pooja in Mangalore, the appellant called the respondent "an old and ugly bride" merely because she was wearing a large bindi. On several occasions, he called her a "rascal, idiot, dumb", etc. in front of their relatives or outsiders to make her feel humiliated. At another instance, at Mangalore, the appellant suddenly got-off the auto-rickshaw in which they were travelling, without warning, despite the fact that the respondent was unfamiliar with the city. Immediately, when she returned to fetch him, he deliberately asked her about how she enjoyed the ride with the auto-rickshaw driver. Apparently, with reference to the incident, thereafter the appellant's sister, Mrs. Geeta Shetty, is said to have gone around telling people that the appellant had gone "freaking" around the city by herself, while leaving her husband behind. In relation to this auto-rickshaw incident, the learned counsel of the appellant has submitted that the findings of the trial Court are incorrect. He refers to certain alleged discrepancies, where it appears from evidence of the respondent that she initially said that he stopped the autorickshaw and got out and later she said that he got off the moving rickshaw. We have examined this evidence. It is clear that the reference is to two different instances i.e. while going to the market and while coming back. It is difficult to imagine any reason why the appellant would behave in this manner so that he could later ask the respondent if she enjoyed the ride with the rickshaw driver; in other words, to humiliate her by casting aspersions on her character. The decision of Hon'ble Apex Court in A. Jayachandra vs. Aneel Kaur, 2004 10 SCALE 153 deserve mention here: "When the whole conduct of the spouse shows instances of ill-treatment, use of abusive language and allegations which amount to casting aspersions on the fidelity of the other spouse and in general have the effect of demoralizing the spouse, against whom the allegations are levelled, causing mental stress and agony, mental cruelty is proved. " With this in mind, we have no hesitation in holding that this conduct of the appellant in the present case, towards the respondent amounted to mental cruelty.;