M.S.A. Siddiqui, J.
(1) This appeal is directed against judgment and decree dated 1-8-96 of the Additional District Judge, Delhi dissolving the marriage between the parties by a decree of a divorce on the ground of cruelty under Section 13(1)(i)(a) of the Hindu Marriage Act.
(2) The marriage between the parties was solemnized on 21.10.90 at New Delhi according to Hindu rites. On 27-3-1992, the respondent/husband filed a petition under Section 13(1)(i)(a) of the Hindu Marriage Act for dissolution of marriage by a decree of divorce on the ground of cruelty. According to the respondent, the appellant's behaviour and attitude towards him and members of his family had been very uncooperative and even cruel from the very inception of their marriage because the appellant being quarrel some in nature would pick up quarrel with him and other members of his family for no rhyme or reasons and she used to run away to her parents' home very often. Immediately after marriage, when the appellant came to the respondent's house, she complained about her feeling of suffocation in her matrimonial home as a result whereof marriage could not be consummated. To illustrate misconduct and cruel behaviour of the appellant the respondent averred specific instances saying that on 25-12-1990, the appellant picked up a quarrel with him and his mother and asked him to live separately from his mother. On that day, she threw a thali containing food at the face of her mother in law. On 26-12-1990 the appellant assaulted the respondent. She also caught hold of his testicles and pressed them with great force. She also threatened to kill the respondent if he tried to make her pregnant. Often, she wilfully and unjustifiably refused to have sexual intercourse with the respondent. On 18-6-1991, the appellant without the consent and knowledge of the respondent, underwent abortion at J.P.N. Hospital. On 10-8-1991, the appellant wrongfully took away entire jewellery of her mother-in-law to her parents house. On 24-3-1992, the appellant accompanied by two men and two women came to the respondent's house and belaboured him and his mother. Thus, it was averred that the aforesaid acts of the appellant amounted to cruelty within the meaning of Section 13(1)(i)(a) of the Hindu Marriage Act.
(3) The petitioner was resisted by the appellant, who refuted all the allegations about her misconduct and misbehaviour towards the respondent and members of his family. She asserted that the marriage was consummated on the night of 22/23rd October, 1990 in Hotel Janpath, where the parties, soon after marriage, stayed together. She further asserted that she was subjected to humiliation and ill treatment at the hands of the respondents and members of his family right from the inception of her marriage. In particular, she averred that on 1-3-1991, on the occasion of Holi her Devrani Smt. Pooja insulted her by saying that her parents did not give sufficient presents to the respondent on his visit to her parents home on the occasion of "Rangpaashi". Her Devrani used to taunt her that she was a "SARAK CHAP" women. According to the appellant her Devrani was responsible for creating disharmony in matrimonial relations of the parties by inciting ill-feelings. She further asserted that her mother-in-law was of superstitious, nature and she had blind faith in her family `Guru'. Her Guru told her that since the appellant's `bidai' did not take place at the auspicious hours at 4 a.m., the appellant's late arrival at her matrimonial home became inauspicious. Unfortunately, the respondent's uncle died of cancer after 5 months of her marriage and the appellant was cursed and condemned for his death. On one occasion, the appellant was reprimanded by her mother in law for her refusal to take liquor. She levelled imputation that her husband and his family members are addicted to alcohol. It was also stated in the written statement that because of dissatisfaction over the dowry brought by her, her husband and members of his family used to maltreat her. It was further stated in the written statement that on 17-6-91, the respondent gave beating to the appellant on account of her refusal to take liquor for celebrating her pregnancy. On 18-6-1991, the appellant was admitted in the Emergency ward of J.P.N. Hospital and after her medical check up, the doctor advised her for immediate abortion to save her life. Consequently, on medical advice, appellant underwent abortion without the prior consent of the respondent. However, on 19-6-1991, the respondent brought her back to her matrimonial home. It was further averred that on 9-8-1991 at night the appellant was belaboured by the respondent on 10-8-91 she was kicked out of her matrimonial home by the respondent.
(4) On these pleadings, learned trial Court framed the following issues :
1. Whether the respondent has treated the petitioner with cruelty, as alleged.
(5) On a consideration of the evidence adduced by the parties, the learned Addl. District Judge granted decree of divorce on the ground that it had been alleged by the appellant in the written statement that her husband and members of his family are drunkards, an allegation amounted to legal cruelty entitling the respondent to a decree for divorce on this ground.
(6) At the outset, I must make it clear that in the instant case, the burden is on the respondent/husband to prove that the appellant has treated him with cruelty within the meaning of Section 13(1)(i)(a) of the Hindu Marriage Act. It has to be borne in mind that the general rule in all question of cruelty is that the whole matrimonial relations must be considered and the Judge trying a matrimonial case must maintain an attitude of sympathetic understanding for both sides if he is to successfully judge psychological situations and subjective factors which he is necessarily called upon to do in such cases. The modern view of cruelty of one spouse to another in the eye of law has been summarised as follows in Halsburys Laws of England Vol. 12, 3rd Edition page 270 paragraph :-
"THE general rule in all kinds of cruelty that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations of taunts. Before coming to a conclusion, the Judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from that point of view. In determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status."
(7) In dealing with the matrimonial matters, the Court is not concerned with a reasonable man or a reasonable woman and it has to deal with a particular man and woman before it. In this connection, I may usefully excerpt the following observations of Lord Raid in Gollins Vs. Gollins (1963) 2 All Er 966:
"IN matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a prior assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard, to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."
(8) Approving the said observations, then Lordships of the Supreme Court in Dastane Vs. Dastane Air 1975 Sc 1575 have observed: @SUBPARA = "The Court has to deal, not with an ideal husband and an ideal wife, (assuming any such exist) but with the particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to a matrimonial Court or, even if they may not be able to drown their differences, their ideal attitudes may help them overlook, or gloss over mutual faults and failures."
(9) Admittedly, the marriage between the parties was solemnized on 21.10.1990 and the spouses parted company on 10.8.1991. The respondent filed the petition for divorce on 27th March, 1992. The decree for divorce was granted on 1.8.1996. The four years' separation must naturally have created many more misunderstanding and further embitterment. In such an atmosphere, truth is a common casualty. Bearing in mind the said caution, I will proceed to consider the evidence adduced by the parties. In Dastane Vs. Dastane (supra), it was observed by their Lordships that in many marriages each party can, if, it so wills, discover many a cause for complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage.
(10) In the instant case, following incidents have been cited by the respondent as constituting cruelty:-
A)Immediately after marriage, when the appellant came to the respondent's house, she complained to him about her feeling of suffocation in the house as a result whereof marriage could not be consummated;
B)On 25.12.1990, the appellant picked up a quarrel with the respondent and his mother and asked him to live separately from his mother. On that day she also threw a thali containing food at the face of her mother-in-law;
C)On 26.12.90, the appellant having caught hold of his testicles, pressed them with great force. On that day she also attempted to strangle the respondent and threatened to kill him.
D)Often, she wilfully and unjustifiably refused to have sexual intercourse with the respondent;
E)On 18.6.1991, the appellant without the consent and knowledge of the respondent underwent abortion at J.P.N. Hospital;
F)On 10.8.1991, the appellant wrongfully took away entire jewellery of her mother-in-law to her parent's house;
G)On 24.3.1992, appellant accompanied by two men and two women came to the respondent's house and belaboured him and his mother. 11. It is significant to mention here that the learned A.D.J. has not recorded specific finding with regard to the aforesaid incidents pleaded by the respondent. On the contrary, he has observed in para No. 23 of his judgment:
"IN view of the aforesaid discussion, I am of the opinion that the respondent by branding the petitioner and his family members as drunkards in her written statement and her testimony has caused "mental cruelty" to the petitioner. It is not expected for the petitioner to live with such a wife." As stated above, numerous incidents have been cited by the respondent husband as constituting cruelty. I will have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvas. As regards the first incident, respondent Prakash Saxena (D.W.1) stated in his examination-in-chief:-
"ON the first day of marriage when the Doli came to the matrimonial house, the respondent behaved in abnormal manner and said that my house is very small and she was felling suffocated and said that she does not want to live in this house and would live in south Delhi. She stayed with me in the matrimonial house immediately after marriage but marriage was not consummated and she avoided deliberately."
(12) On the contrary, he stated in his cross examination that "Bidai ceremony took place at 4 a.m. on 31.10.1990. The first night of marriage was celebrated at Janpath Hotel, New Delhi. Then on 1.11.1990 respondent was brought to matrimonial home." Thus, his aforesaid statement in the cross examination clearly shows that on the night of 31.10.1990 the marriage was consummated in the Janpath Hotel and his earlier statement about non-consummation of marriage is false. As regards the second incident, it is significant that it was Averred in the plaint that the appellant being quarrelsome in nature would pick up quarrel with the respondent and other members of his family for no rhyme and reason and she used to run away to her mother's house very often. Respondent Prakash Saxena (P.W.1) stated in his examination-in-chief that :-
"DURING this period, she never behaved like a good house-wife and she never did any house-hold work and always disturbed the atmosphere of the house on minor issues. She used to go to her parents house after office hours on several occasions without our consent and knowledge and upon inquiries, late in the night, we used to find out her in her father's house. This was the main cause of disturbance."
(13) On the contrary, he admitted in his cross-examination that the appellant remained in the matrimonial home from 1.11.1990 to 10.8.1991. Thus, his aforesaid statement runs counter to his earlier statement made in his evidence-in-chief. Similarly, it was pleaded in para No. 4 of the plaint that:-
"IT was on 25th December, 1990, the respondent took up the quarrel with the petitioner and his mother and openly declared that the petitioner must live separately from his mother and must sell his house and should buy a house in South Delhi. She never cooked any food and started calling the mother of the petitioner with rick names and even threw the food of thali on the face of the mother saying that she cannot cook the food properly."
(14) Narrating the said incident, respondent Prakash Saxena (P.W.1) stated in his examination-in-chief:
"ON 25.12.90 her behaviour was very aggressive and when we were to take dinner, she flared she flared up and threw hot Thali of food on my mother and abused me and my mother, started fighting physically."
(15) Strangely enough, para No. 4 of the plaint is conspicuous by the absence of the alleged fight and the use of abusive language by the appellant against the respondent and his mother. The aforesaid contradictions in the evidence of the respondent Prakash Saxena (P.W.1) strike at his truthfulness considerably and would naturally detract immensely the value to be given to his evidence regarding the alleged cruel behaviour of the appellant. For reasons best known to the respondent, his mother has not been produced in the witness box to depose about the alleged incident. Consequently, I think it hazardous to rely on the flimsy evidence of the respondent regarding the said incident.
(16) As regards the third incident, it was averred in para No. 4 of the plaint that: @SUBPARA = "She was pacified even on 26th December, 1990, she had beaten the petitioner and caught hold of testicles of the petitioner and pressed so hard and declare that she will kill you if you tried to make her pregnant."
(17) It is significant that the cause of the alleged assault on the respondent has not been mentioned in the plaint. It does not stand to reason that on that day, appellant would have belaboured the respondent without any rhyme and reason. However, narrating the said incident, respondent Prakash Saxena (P.W.1) stated in his examination-in-chief that :-
"ON 26-12-1990, she phoned to her parents house and said that they had married her with kanjars and I pacified her and during the night time on the same day when I wanted to have sex with her, she flared up and caught hold up my neck and pressed with great force. Her aggressive attitude never stopped her. She caught hold of my testicles and pressed very hard and declared that she would kill me. I saved myself with great difficulty and I felt that I cannot live with her because of her cruel behaviour."
(18) I am constrained to observe that in his evidence, respondent (Public Witness 1) has attempted in vain to improve the story with regard to the incident alleged to have taken place on 26-12-1990. Respondent has nowhere pleaded in the plaint that incensed by the respondent's attempt to have sexual intercourse with her, respondent attempted to strangle him. This circumstance alone is sufficient to discard his testimony regarding the said incident. However, respondent (Public Witness 1) stated in his cross examination that during the alleged assault on him, he raised an alarm which attracted his mother to the spot and on her knocking at the door, the appellant released him from her grip. He further stated that after the said incident, he and the appellant slept in the same room. It is significant that respondent has not examined his mother to corroborate his evidence. Respondent (Public Witness 1) has also admitted in his cross examination that neither he got himself medically examined nor lodged any report at the police station regarding the alleged incident. It is hard to believe that the respondent in fear of his life would have behaved like a coward when confronted with an imminent aggression. That apart, the fact that after the alleged, incident, respondent slept with the appellant in the same room, clearly shows that the alleged incident as narrated by him (Public Witness 1) is most unnatural and improbable and can safely be characterised as false.
(19) Respondent (Public Witness 1) also deposed that on 9-4-1991, appellant's brother called him at his house and asked him to live separately. He further deposed that on his refusal to do so. Appellant's brothers assaulted him as a result whereof he sustained an injury on his head and became unconscious. Thereafter, he was admitted in the R.M.L. Hospital for treatment. Strangely enough, no such incident has been mentioned in the plaint. The said incident is beyond the pleadings and hence cannot be relied upon.
(20) The respondent has attempted to plead and prove that often the appellant wilfully and unjustifiably refused to have sexual intercourse with he. Needless to say that sex play important role in matrimonial life and cannot be separated from other factors leading to a successful married life. Therefore, conduct of husband or wife which renders the continuance of cohabitation and performance of conjugal duties impossible amounts to cruelty. As said by Lord Denning in Kalesh Sky Vs. Kalest Sky 1950(2) All.E.R. 398:-
"THE wilful and unjustifiable refusal of sexual intercourse is destructive of marriage, more destructive, perhaps, than anything else. Just as normal sexual intercourse is the normal bond of marriage, so the wilful refusal of its causes a marriage to disintegrate. It gives rise to irritability and discord, to nervousness and manifestations of temper, and hence to the break down of marriage."
(21) It was averred in para 5 of the plaint that
"....ASshe desired to go for an honeymoon tour and the petitioner in the month of February, 1991 took the Respondent to Mount Abu for about six days and there also, she avoided the sex but the marriage was consummated with great difficulties and after persuasions."
(22) This clearly shows that it was the appellant who desired to go to Mount for honey mooning. This circumstance alone is sufficient to contradict the respondent's statement about the alleged wilful refusal of the appellant to have sexual intercourse with him. On the contrary, respondent (Public Witness 1) wants us to believe that he had persuaded the appellant for this trip. Respondent (Public Witness 1) has also admitted that in May, 1991, the appellant became pregnant. There is no scope for imagining that the conception of the child could be the result of single act of sexual intercourse and that such an act could be stark animal act unaccompanied by the nobler graces of marital life. In this view of the matter, it is not possible to hold that often the appellant wilfully and unjustifiably refused to have sexual intercourse with the respondent.
(23) T is beyond the pale of controversy that on 18-6-91 the appellant was admitted in the Emergency ward of the L.N.J.P. Hospital, New Delhi and on the same day her abortion was done in the said hospital. Appellant Smt. Ranjana Saxena (DW 1) deposed that she willingly submitted to abortion on the medical advice of the doctor, who had examined her in the said hospital. Her evidence clearly shows that the abortion was done to save her life. Respondent (DW 1) has pleaded ignorance about the circumstances in which the appellant's abortion had taken place. However, he deposed that on 19-6-91, he got her discharged from the said hospital and brought her to his house. He further stated that "in order to please her, on 27-7-91, I took her to Bombay Goa trip and we returned to Delhi on 4-8-91". Bearing in mind the said statement of the respondent (Public Witness 1) it can safely be inferred that after the appellant's abortion, the respondent and the appellant led a normal sexual life and this is a proof that the respondent condoned the aforesaid act of the appellant. Consequently, the respondent is not entitled to get a decree of divorce under Section 13(1)(i)(a) of the Act on the aforesaid ground.
(24) It was averred in para No. 6 of the plaint that on 10-8-91, the appellant took away entire jewellery of his mother to her parent's house. Respondent has attempted to improve the said story in his evidence. He deposed that on 10-8-91, the appellant removed the entire jewellery of the family and silver coins worth Rs. 2-1/2 lacs approximately. Surprisingly, neither the respondent nor his mother lodged any report at the police station about the alleged theft. This circumstance alone knocks the bottom out of the respondent's case. I have it from the lips of the appellant (DW 1) that on 10-8-91 she was driven out from her matrimonial home by her in-laws. It is difficult to place any reliance on the flimsy evidence of the respondent (Public Witness 1) in view of the positive statement of the appellant (DW 1). Respondent (Public Witness 1) further deposed that on 24-3-92 at 6 a.m. the appellant accompanied by two men and women came to his house and belaboured his mother as result whereof she became unconscious. He also testified that after assaulting his mother, the appellant and her male companions also assaulted him. It is significant that the respondent has not examined her mother who could have lent material corroboration to his testimony regarding the alleged incident. That apart, the respondent did not lodge any report at the police station about the alleged incident. This circumstance, to a great extent, probabilises the case of the appellant that the respondent had invented the story of the alleged assault to get rid of her. This inference also finds sufficient confirmation from the follow admission of the respondent (Public Witness 1) that :-
"IT is correct that I did not give any love and affection to the respondent during the period she stayed with me."
(25) The aforesaid admission of the respondent speaks volumes for the needless to say that this attitude of the respondent and apathetic attitude of the respondent to the appellant towards the appellant was bound to create inferiority complex and loss of her mental equilibrium. Thus, in the circumstances which apparently prevailed in the house of the respondent, the family environment was bound to be tense and even suffocating at times for the appellant. It is, therefore, no wonder that the appellant must have aired her resentment and given vent to her pant up feelings sometime or the other. She may have uttered even some unpalatable words against the respondent or his mother but that would not mean that she treated the respondent with cruelty. On the facts and in circumstances of this case, much importance can not be attached to any such utterance of the appellant which must have been made out of sheer frustration. The antipathy of the respondent towards the appellant and his desire to get rid of her is also evident from the fact that he has deposed to certain facts against her which are beyond his pleadings. That shows the kind of animus the respondent has against the appellant.
(26) It would not be out of place to mention here that a wife is entitled to insist that her husband treats her with dignity and self respect and her life with the husband is peaceful and happy. Applying the touch stone of preponderance of probabilities to the totality of the circumstances in this case, I am constrained to observe that the appellant was not leading a happy married life as she was denied even the love and affection which a wife would like to share with her husband. She was, therefore, bound to feel morose and gloomy. Any way, no reliance can be placed on the flimsy evidence of a biased husband (Public Witness 1) who may well be actuated by a strong motive in levelling false and exaggerated imputations against his wife in order to get rid of her. Unfortunately, the learned A.D.J. overlooked the aforementioned contradictions and improbabilities in the respondent's case while coming to the conclusion that the appellant was guilty of treating the respondent with cruelty.
(27) In the instant case, learned Addl. District Judge has granted decree of divorce on the ground "that the respondent by branding the petitioner and his family members as drunkards in her written statement and her testimony has caused "mental cruelty" to the petitioner. It is not expected for the petitioner to live with such a wife.
(28) It was pleaded in para No. 6 of the written statement:
".......ITwas almost a daily routine for petitioner, his mother, his brother and brother's wife to take alcohol every evening and since respondent did not give them company, she was despised, abused and ill-treated."
(29) The appellant (DW 1) stated in her examination-in-chief that:-
".......THEfather of the petitioner, died because of excessive alcohol due to which his liver got damaged. The maternal uncle of the petitioner namely Sh. Bishan Lal Saxena also died of excessive drinking. Sudershan Anita wife of Shri Rattan Lal Saxena, who is the maternal uncle of the petitioner also died because of drinking."
(30) In V. Bhagat Vs. D. Bhagat , the Apex Court had occasion to consider the question as to what kind of cruel treatment does clause (i-a) of Section 13(1) of the Hindu Marriage Act contemplate. Explaining the kind of mental cruelty that is required to be established under the said section, their lordships observed that:- @SUBPARA = "Mental cruelty in Section 13(1)((i)(a)) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wrong party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case, it is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
(31) Needless to say that in a suit, the defendant has every right to make correct statement of facts to defend himself/herself against the wanton, imaginary and irresponsible allegations and averments made in the written statement must be read in the context in which they are made. In a matrimonial suit, merely because there are allegations and counter allegations, a decree for divorce cannot follow. But, if totally unfounded allegations and aspersions on character, honour or reputation or status or health of the aggrieved party are made in the written statement, they would constitute matrimonial cruelty within the meaning of sub clause (i-a) of Section 13(1) of the Hindu Marriage Act.
(32) In the light of the said principles. I may now examine whether the allegations made by the appellant in para No. (6) of the written statement and the statement by her in her examination-in-chief amounts to mental cruelty within the meaning of Section 13(1)(i)(a) of the Hindu Marriage Act. The relevant portions of the written statement and the statement of the appellant in her examination-in-chief have already been set out by me herein before. The appellant has stated in the written statement that respondent and members of his family used to take liquor daily. As mentioned earlier, respondent has admitted in his cross examination that he never loved the appellant. It appears that respondent had a kind of aversion for the appellant from the very inception of marriage. Considered in this context, the allegations made by the appellant in the written statement about drinking habits of her husband and members of his family are mere protestations of an injured wife. Moreover, respondent (Public Witness 1) has unequivocally admitted in his cross examination that he and his mother used to take liquor. Viewing the said admission of the respondent (Public Witness 1) it cannot be held that the aforesaid assertions are totally unfounded and as such they constitute mental cruelty of such a nature that respondent, situated as he as and in the context of the several relevant circumstances, cannot reasonably be asked to live with the appellant. Unfortunately, learned Addl. District Judge overlooked this aspect of the matter while coming to the conclusion that the appellant was guilty of treating the respondent with cruelty. Taking an overall view of the evidence on record and the attending circumstances, I find and hold that the respondent has failed to prove the allegation of cruelty against the appellant.
(33) For the foregoing reasons, the appeal is allowed, the judgment and decree of the trial Court is set aside and the divorce petition is dismissed with costs.