KAPUR, J. - (1.) THE husband's petition for grant of divorce has been accepted by the Judge Family Court, Jaipur, by his order, dated, 8th June 1990, against which the wife, Pushpa Devi has preferred this appeal.
(2.) THE facts in brief are that the appellant and the respondent were married according to the Hindu rites and customs in the year 1977 and a son was born on 21. 10. 1978 and a daughter was born on 24. 2. 1980. THEy lived together at Jaipur, where the husband respondent is working in the office of the Director General Police. THE appellant was found to be suffering from tuberculosis and for her treatment she stayed for quite some time at Delhi with her parents, and her treatment was done at Jaipur also. Details about their married life shall be seen lateron and here it may be said that the parties parted company on 9. 4. 1988 and soon after this on 11. 4. 1988, the petition for divorce was presented before the court. THE initial grounds on which the petition was based were amended and some new grounds were added after the appellant filed her reply. THE manner in which the final separation took place shall be seen later, but it may be said that according to the respondent, the appellant and her son were taken away by the appellant's mother, while according to the appellant she and her son were thrown out of the house. THE learned Judge, Family Court framed a number of points, on the basis of the circumstances pointed out by both the parties and on the basis of evidence held that the behavior of the appellant was one of cruelty towards the husband and this cruelty fell within the scope of matrimonial cruelly, on basis of which a decree of divorce could be granted. According to the facts narrated in the un-amended petition, the appellant became unwell soon after her delivery and it was learnt that she was suffering from some infection disease. Her mother took away her along with the child for purposes of treatment. Baby son was also admitted to the Hospital on account of liver tuberculosis and during this period the respondent husband kept on visiting his wife and son at Delhi. It was learnt that the wife was also suffering from liver tuberculosis and according to the respondent-husband this fact was concealed from him at the time of marriage. After about two years, the appellant came to Jaipur, but the son remained at Delhi and the appellant's mother refused to part company with the child. Again at the time of next delivery in Feb. 1980 the mother and child, both became unwell and remained admitted in the Hospital and the mother of the appellant was also called. Then the appellant was taken to Delhi where she remained admitted in Hospital. She was able to come back Jaipur only after two years and her treatment continued at Jaipur in various Hospitals. Coming to the grounds, it was mentioned that when the appellant came to Jaipur in 1983 she became repulsive towards sexual intercourse and thereafter there was no relationship between the husband and wife. The appellant always insisted that the respondent should stay away from his parents and brothers, to which the respondent did not agree and because of this there was mental tension and unrest in the family. Things continued in this manner when the appellant again became ill in the year 1984. Her mother was informed, at that time the appellant's mother made proposal that the respondent should marry his sister-in-law Laxmi as his wife Pushpa was unwell and this proposal was not accepted by the respondent's father, even though one Ghanshyam Sharma maternal uncle of the respondent tried to pursuade the respondent and his parents. Because of refusal of this proposal it was alleged that the appellant's mother was annoyed. The proposal was again made in Oct. , 1987 & when the respondent refused the appellant's mother started levelling false allegations about ill treatment etc. In the petition specific incident of 3. 2. 88 has been mentioned. According to the respondent on the day the appellant's mother, brother, two uncles and some unknown persons came at the respondent's house in the morning & staged a demonstration & started shouting false allegations and even threatened that they put the respondent to some harm. The appellant's mother and uncles also threatened that they would get the respondent transferred to Barmer or see to it that he was dismiss from service. The appellant and her mother who remained back were pacified by neighbours and other relations. On the next day the appellant's mother went to the house of the Superintendent of Police making allegations against the respondent. This also caused mental tension and agony to the respondent wrote a letter to his brother-in-law as to in what manner his mother had behaved. Then on 4. 3. 1988 the appellant's mother came to the respondent's house and obtained a letter from the appellant in which complaints were made against the respondent. Considerting all the circumstances the respondent was satisfied that he could not live with the appellant and therefore he wrote a letter to the appellant's mother in the end of March, 1988 saying that it was 'impossible for them to live together, hence she should come and settle the matters about maintenance etc. by mutual agreement. Then on 8. 4. 1988 the appellant's mother and brother Satish came there and they wanted to take away the appellant and her son and said that they were not interested in maintenance as they had enough of their own. The appellant also wanted to go and on their instance the respondent agreed to let them talk their son brijesh and on the morning of 9. 4. 1988 the appellant with her mother and brother and son went away to Delhi saying that she would never return and the respondent should not make efforts to get the custody of the son. ' As seen above the divorced petition was filed on 11. 4. 1988 on the ground that the aforesaid circumstances constituted mental cruelty. In the reply submitted by the appellant most of the facts were admitted, but it was denied that she was suffering from any long and serious illness. According to her she was taken to Delhi for treatment at the instance of the respondent, who used to call her mother to Jaipur. It was alleged that the respondent demanded a sum of Rs. 20,000/- by way of loan for the construction of house and when her parents did not give this amount, she was illtreated and after the birth of her daughter, her mother-in- law kicked her in abdomen with the result that a cyst was formed and this required long treatment. According to her the respondent used to say that she was backward and old fashioned and used to force her to agree for a mutual divorce. The other allegations about ignoring house hold work, wanting to live away from in -laws, being indifferent to merital relations were all denied. In fact she stated in the reply that the allegations against the appellant show the perverse passionate mental desire of the respondent. No proposal whatsoever about the marriage of her younger sister with the respond was made. In fact every body wanted that the respondent should not insist for mutual divorce. In fect she made allegations of cruel nature of the respondent. The respondent wanted to be relieved with the burden of the appellant and has therefore concocted all the stories. After the petition was filed there were some other developments. The appellant filed a criminal case against the respondent for the offence under section 406 IPC. Another complaint for defamation and application under section 125 Cr. P. C. for grant of maintenance was also moved by her & she filed a suit in forma pauperist for return of her stridhan. Besides this she made a complaint to the Director General of Police that the respondent had threatened her and her mother when they came to Jaipur to appear before the Family-Court. It was on account of these proceedings that the respondent filed an amended petition under section 13 of the Hindu Marriage Act and in this amended petition he has raised ground that the appellant has caused mental agony and tension on account of her behavior and the behavior pointed out is that she manipulated letters of complaint against the appellant. She made complaints to his officers and then by making a false allegations spoiled his career and by her conduct in filing criminal cases has made his reputation suffer and thus has caused mental tension. All these complaints were filed deliberately in order to cause worry and anxiety to the respondent. Hence these activities of her have been made basis of additional grounds for showing her cruel behaviour. The learned Judge, Family Court framed one issue about the cruel behaviour of the appellant and recorded the evidence of the parties. While deciding the matter, the learned Judge, Family Court, divided the ground of cruelty under 16 different headings and proceeded to analysis the evidence on each points. These 16 points framed by the Judge, Family Court are as under : *****
(3.) THE learned Judge, Family Court did not accept that the appellant was suffering from lever tuberculosis prior to her marriage and that this fact was concealed from the respondent. At the same time it was held that the illness of the appellant was not on account of any kick or blow given by her mother-in-law in the abdomen. On the statement of the respondent and his mother and his father, it was held that the appellant was indifferent towards her children and she had no attachment towards them. Point No. 3 about the sexual aberration was not believed and on the point No. 4 it was held that the appellant wanted that her husband should slay away from his parents. On the point No. 5 it was held that the appellant had made false allegations against the respondent that the latter did not give him food and that she used to torture her for dowry and such false allegations amounted to mental cruelty. THE manner in which the appellant treated her in-laws and used words for them was also held to constitute cruelty towards the husband. THE incident of 3. 2. 1988 was also held to be proved wherein the appellant's mother, two uncles and brother came at the residence of the respondent and created a scene levelling several allegations and at the same time giving out threats and this was also considered to be a ground for causing mental disturbance and tension. Points 8 and 9 were decided against the respondent. Under point 10, the learned Judge did not believe that the appellant's mother and brother forcibly took away the appellant and her son Brijesh as the respondent had sent a telegram to the appellant's mother to come to Jaipur to take away the appellant and Brijesh. THE complaints to the officers in the department was also held to be cruelty towards the husband. As for the proceedings started after the divorce petition was filed it was held that the some were limited to the allegations mentioned in it and could not be said to be cruel behaviour. Looking at the evidence as a whole the learned Judge concluded that the appellant's behaviour towards her in laws was cruel and she herself admitted that she was not capable of looking after children and she did not look after them and she wanted that she should stay away from her in-laws and she made false allegations against her husband and her in-laws which all show that she and her mother were out to have their own way so much so they in 1987 went to the house of the respondent with other persons and created a scene and her conduct was such which caused mental torture to the respondent and that decree for divorce was granted. We have heard the learned counsel for the parties at length and we even talked to the parties themselves in order to bring about a compromise between them but they could not reach a settlement either way. Before examining whether there are sufficient grounds to hold that there is proof about cruelty so as to entitle the respondent the decree of divorce, the oral and documentary evidence may be perused. We already have an idea about the manner in which the married life of the parties proceeded, within a year of their marriage the appellant gave birth to a son and soon after the mother and son became unwell and they had to be shifted to Delhi for their treatment. The child stayed at Delhi for four years while the appellant returned after some time and again gave birth to a daughter on 24th February 1980. Both the deliveries were delivered at Jaipur, but again the child was found to be ill and was hospitalised from one Hospital to another and then they proceeded to Delhi where the appellant underwent some operation. Thereafter for four years the appellant shuttled between Jaipur and Delhi receiving treatment at both the places. According to the respondent the trouble started in July 1987 when the appellant's mother came with her younger daughter Laxmi and made a proposal that the respondent should marry Laxmi, as the appellant was ill. The respondent refused to do so and upon this the appellant started ill-treating him and making false allegations that she was being ill-treated. Then came the incident of March, 1988 wherein the appellant's mother and others came to Jaipur and created a scene and finally took the appellant away on 9. 4. 1988 along with the son Brijesh. In September, 1987 the appellant wrote a letter to the respondent from Delhi. Actual scribe of the letter is Laxmi, younger sister of appellant. Besides mentioning about her illness she has written that she remembers the respondent and both the children but was helpless because of illness and her illness was such that she had to take rest. She was worried as the respondent had not made enquiries about her health and stated that he should come and also look after the children. This normal letter does not contain anything about the strained relations between the parties. The only reference is about the helplessness of the woman on account of illness. Laxmi also penned a few lines in this letter from her side and also wrote a couple of couplets on behalf of the appellant. Again 29. 10. 1987 Ex. 7 letter was written by the appellant as well as Laxmi remembering the children and invited the respondent to come to Delhi. Ex. 8 was written by the appellant herself showing anxiety of not receiving any letter as winter was approaching. She worried about her children and she wrote that being an invalid mother she could not look after her children properly. She also mentioned that he had thought about living away from his parents and she mentioned that a mother should not be such who would poison the life of the son and daughter-in-law. It appears that the respondent did not write any letters during this period. His letter on record is Ex. 9 dated 20. 2. 1988. This he wrote to his brother-in-law Kailash and is a typed letter. In this letter he has referred to the incident of 3. 2. 88 when the appellant's mother came with some unsocial elements to his house to lower his prestige: The respondent further invited his brother-in-law to come to his house and instructed that they should not bring their mother along with them. He wrote that was it the duty of a wife to make attempts to kill her husband and in-laws and still remained peaceful in the same house. He suggested that in such tense situation the husband a wife should not live under the same roof. This shows that even on this date the appellant was living with her husband. The next letter of the respondent is Ex. 11 dated 8. 3. 88, which he wrote to his mother-in-law accusing her of obtaining letters containing false complaints against him from Pushpa, wife of the respondent. He accused her of coming to his house in his absence and forcing Pushpa, the appellant to write such letters and on the very same night she told about it to the respondent. That this action was done in order to spoil the relations between husband and wife and that she was playing with the life of innocent Pushpa. Such behaviour would come in the way of finding a suitable match for Laxmi. He wanted that his mother-in-law should keep her things away from his wife and children. When Pushpa was with the respondent, he again wrote a letter on 25. 3. 1988 to his mother-in- law Ex. 15 that his confidence in Pushpa was shaking and when they had no confidence on each other then why they should maintain relations with each other. He wrote that he had talked with Pushpa and she decided that she should spend her remaining life with her mother and the respondent would give some consolidated amount for the maintenance. He asked his mother-in- law to come to Jaipur. On receiving the letter, so that all could sit together and finalise an agreement and this agreements would bring about place in both the families. The agreement would be written down with mutual agreement and there would be no necessity of going to Court. After writing this the respondent sent a telegraph on 2. 4. 1988 saying that on account of their illegal activities and attitude his mental worries were increasing and they should come and take away Pushpa and Brijesh and the decision of the Panchas would be acceptable to him. It was in pursuance of this telegraph that the appellant's mother came to Jaipur and then Pushpa and Brijesh Proceeded to Delhi. While going the respondent wrote a note that Pushpa was going along with her mother and Brijesh and the ornaments she was taking were teeka and one nose ring along with her, he further wrote that they were going with the consent of both the parties. The learned counsel for the appellant has contended that on the basis of the allegations which have been raised by the respondent it cannot be said that the attitude of the appellant was such so as to amount to. mental cruelty sufficient to grant divorce under section 13 of the Hindu Marriage Act. It is contended that the appellant was an affectionate wife having regard for his husband and love for her children but unfortunately she was suffering from tuberculosis and had to remain away from her children and because of the illness could not attend her children and this helplessness of her has been mis- interpreted into indifference and dislike of her husband and children. It is contended that merely because she wanted to stay away from her in-laws it cannot be said that this was a cruelty on her part so as to allow the divorce petition. A number of decisions have been relied upon, which we shall examine shortly. It is contended that most of the allegations in the petition have been made against the appellant's mother and if the respondent was annoyed by the proposal to marry with Laxmi then the appellant could not be made a victim of it. It is contended that every time the appellants mother came when she was called and she could not be said to be coming on her own accord. Earlier she was called to attend the ailing wife and son and then subsequently whenever there was any problem the mother had to come at the call of the respondent. She was not inter ferring in the married life of the appellant and the respondent but was made to come again and again, Even when the final breakup was near the appellant's mother was called and she was asked to take away the appellant and Brijesh. The telegram Ex. 16 dated 2. 4. 1988 and the letter Ex. 15 dated 15. 3. 1988 supports this. It has' been contended that the respondent was unnecessarily worried about the complaints alleged to be written by the appellant at the instance of her mother when actually there are no such complaints. The respondent wants to show that he was living comfortably with the appellant but her mother came there and forcibly took away the appellant and the son, but this is a made up story, which goes against his own letters. Whatever the situation, the respondent was tired up with his mother-in-law's interference and he wanted that he should be left alone with his wife and children but at the some time it cannot be said that the role of the appellant's mother should be taken to be the role of the appellant in breaking the matrimonial home. The appellant's mother may be having good points as well as bad points, but then they would not become good or bad points of the appellant herself. It is contended that the only aim of the respondent is to get rid of his sick wife and for this purpose he has all the stories. ;