FAROOQ HASAN, J. - (1.) THIS is a matrimonial dispute arising out of a petition filed by the respondent, Ashok Kumar Begwani, under Section 13 of the Hindu Marriage Act, 1955 for a decree, of divorce against the appellant, Mrs. Raj Bharti, on the ground of cruelty.
(2.) A broad brush factual backdrop will help delineate the points evolved in this matrimonial dispute. On January 31, 1983, at Calcutta, the marriage of. the parties took place according to the Hindu rites and customs, and thereafter, the appellant started living with the respondent-husband in his house. According to the husband's application, the relations in between the parties were not affectionate & cordial from the very beginning and soon after the marriage, the appellant left away the house of the husband and started living in the house of her brother at Calcutta. It has further been stated in the husband's application that the respondent (husband) came to live in his house at Jaipur alongwith his wife-appellant for about 15 days; that, the wife returned back from Jaipur to Calcutta in March, 1983 without his consent and thereafter did not come back to live with him at Jaipur. Apart from cruelty, the divorce has been sought on the ground of desertion, for which certain circumstances have been averred in the husband's application. The appellant wife, in her reply, denying the allegations made by the husband appellant, alleged, that she stayed in the house of her husband at Calcutta in spite of torture, abuses, ill-treatment & threatening, on account of which she had left with no option but to go her parental house. The appellant has also cited some instances of cruelty by the husband including the fact that the demand of a huge sum by the husband was made from her brother to whom she stated to be a handicapped person suffering from polio. However, the wife has specifically denied the fact of coming to Jaipur and residing with the - husband ' at ' Jaipur, which laid her to contend that the Family Court has no jurisdiction to entertain the husband's application for divorce. In the reply, the wife has also stated that the application has been filed at Jaipur with ulterior motive for harassing and causing mental agony and financial loss to her. The husband's application for divorce was allowed by the Family Court earlier on July 18, 1986 - against which, an appeal was filed before this Court and the same was allowed on September 23, 1987. While allowing the wife's appeal (Civil Misc. Appeal No. 212/ (1986), earlier judgment & decree dated 18. 7. 1986 were set aside and the case was remanded tor re-trial and the parties were allowed chance to produce their evidence. And, it was directed to the Family Court that after recording the evidence of the parties, it would decide the matter afresh. As stated earlier, the divorce has been sought on the grounds of desertion & cruelty. So, before going into the merits of the case, we would like to express our views by way of more intrmsical examination on the points as to in what circumstances, desertion & cruelty can be assumed.
(3.) LEGAL cruelty may be defined as "conduct of such a character as to have caused danger to life, limb or health or as to give rise to a reasonable apprehension of such danger". Therefore, an inquiry has to be Conducted whe-ther the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it would be harmful or injurious for him to live with the non-petitioner. In" a case where the wife was arrogant temperamentally and showed total disrespect towards her husband and towards members of his family causing untold agony to the husband, then such sort of conduct of the wife is covered by the definition of 'cruelty'. In a case of judical separation, if the evidence adduced showed that the defendant had adopted a persistent silence towards the applicant and he had persistently and deliberately ignored her existence, making life intolerable, the applicant namely the husband was entitled to a decree of judicial separation. The clause of cruelty requires that to establish cruelty the offending spouse must have 'treated' the applicant with cruelty and the court has to ascertain whether or not there was anything which can be described as treat-ment or conduct of the nature. 'cruelty' can be inferred from a display of temperament, emotion or perversion whereby the one gives vent to his or her feelings, without intending to injure the other. What is cruel treatment must, to a large extent, be a question of fact or a mixed question of law and fact to be determined within the ambit of the rule. ;