Ahsan Hydari v. Mrs. Vidya Hydari .

Jagannadha Raju, J.:-

(1) This is an appeal filed by the appellant who is the respondent - husband in o. P. No. 308/82. The present respondent mrs. Vidya hydari filed an application for granting a decree of divorce dissolving the marriage between the parties which took place on 14 - 6 - 1975. The marriage was solemnised under the special marriage act and the present petition is filed under section 27 of that act. The trial court came to the conclusion that the petitioner has made out a case that she was subjected to ill - treatment both mental and physical and that husband is guilty of neglecting the family by not providing adequate funds for maintenance of the household and thus neglected her which resulted in her walking out of the marital home. In short the court found cruelty mental and physical was established and hence a decree for divorce should be granted. The court also observed that on a careful analysis of the evidence problems arose between the parties even before the marriage, as the marriage got postponed by 30 months and subsequent to the marriage the problems got aggravated as their marital life was not happy. The court came to the conclusion that the parties who are highly educated and sophisticated have chosen wrong partners of life and that there is no possibility of their living together any longer as there is total tempermental incompatibility and that there is irretrievable break down of the marriage.

(2) In this appeal sri k. Ramagopal, appearing for the appellant - husbandcontends that the wife appears to be the hyper sensitive neurotic type and perhaps her family background contributed for her becoming a psychopathic case. Simple and trivial matters which should normally be adjusted between the spouses have been exaggerated and things had gone from bad to worse. The parties to the marriage come from highly cultured and well educated sophisticated families. The husband is the grand - son of a former prime minister of hyderabad, and an engineer. The wife had a brilliant academic record and she is the step - daughter of raja rameswararao, raja of wanaparthy. It is unfortunate that these two highly educated and cultured people were unable to make a success of their marriage though their marriage is a love marriage. On behalf of both the parties it was submitted that from 12 - 8 - 80 the parties have been living separately and there is no possibility of their coming together, in fact in 1982 at one stage the parties contemplated divorce by mutual consent. But at the last stage the husband resiled and ultimately this original petition was filed in the year 1982.

(3) Mr. Ramagopal contends that though he has no objection for thecourt granting a decree of divorce because there is no possibility of the parties living together, he has every objection for the various findings recorded by the learned judge to the effect that the husband is a drunkard and that he was guilty of inflicting mental and physical cruelty to the wife and that he was neglecting the family. He contends that in this marriage it is the husband who is the victim of cruelty. The wife never cooperated for a happy married life and she never performed her conjugal obligations. She appears to be averse to sexual life due to some physiological defect and tempermental attitude. Mr. Ramgopal contended that the trial judge did not draw proper inferences from the material placed before him and several of the findings recorded by the judge have to be vacated.

(4) Sri y. P. Narula appearing for the respondent - wife contendsthat the trial court is perfectly justified in coming to the conclusion that the husband is guilty of inflicting mental and physical cruelty and he is also guilty of neglecting the wife as he never provided the necessary funds for running the household. In sexual life he was indulging in various abuses which are nothing but inflicting greatest cruelty both physical and mental on the wife. Mr. Narula submits that the marriage has broken down completely and the main point of contest between the parties is regarding the custody of the child that was born on 28 - 10 - 1978. A petition is now pending in the delhi high court regarding the custody of the child. That will be fought out separately. He contends that the various findings recorded by the trial judge are perfectly justified and they are based upon the evidence on record. There is no justification for interfering with the same.

(5) The points that arise for consideration in this appeal are

(1) whether the husband is guilty of causing mental and physical cruelty to the wife ? (2) whether the husband was a habitual drunkard and in a drunken mood, was he in the habit of making derogatory remarks about the wife and her parents and also indulging in abnormal sex practices ? (3) whether the husband is guilty of neglecting his wife and daughter by not providing funds for maintenance of the household ? (4) whether the trial court is justified in granting a decree for divorce ?

(6) Point no. 3 :though allegations have been made about therespondent neglecting to maintain the petitioner and about his not providing adequate funds for running the household, we find on an examination of the totality of the evidence that this allegation is somewhat exaggerated. Both the petitioner and the respondent were earning. The respondent was working as a production engineer in ashok leyland and he was having a take home pay of rs. 1300/ - to rs. 1400/ - according to one version about rs. 1800/ - to rs. 1900/ - according to another version of the respondent. It is the claim of the respondent - husband that the wife never complained to him about his not providing adequate funds for running household. It looks as if that out of the take home pay of rs. 1300/ - or rs. 1400/ - soon after the marriage, the respondent was spending some money for his personal needs like maintenance of the car, his occasional drinking, and cigarrets and he was handing over rs. 1300/ - to rs. 1400/ - to the wife for the family expenses. There is abundant evidence to show that the husband conducted himself in a frugal manner and he met all the hospital bills; paid for the music tutions of the wife. He was having other sources of income. He was having a fixed deposit of rs. 30,000/ - and he was getting interest on it and he was also getting about rs. 300/ - towards his share of the rent of his house. Considering the status of the parties it is quite likely that now and then the petitioner might have used her funds for conducting the household, but it does not mean that the husband neglected to maintain her in the sense that he was not providing adequate funds for running the household. As both the parties come from affluent families and as both of them are earning, there is nothing strange if occasionally the wife was made to spend a little money for running of the household. To make a happy home and a success of marriage, working couples should not think in terms of "my money" and "your money" and they should always think of "our money". Only when they develop that feeling and attitude they can make a success of their marital life. Taking an over all picture we find on point no. 3 that the husband is not guilty of neglecting his wife and daughter and that he did provide funds for maintenance of the household.

(7) Points 1 and 2 : in this appeal though in the pleadings there isno plea about the respondent being a drunkard, at the stage of evidence a lost of material has been introduced to show that the husband is a drunkard and that in a drunken condition he was doing certain things which are not normally expected of an educated and cultured man. The record reveals that the respondent was taking drinks now and then. He admits it. He also has a permit for liquor. In fact the evidence of p. W. 2 the father of the petitioner clearly indicates that he knew about the respondent drinking. But he never saw the respondent in a drunken condition and he does not consider him to be a drunkard. In fact p. W. 2's evidence is most natural and he categorically states that even before the marriage when the respondent visited his house he entertained him with drinks and there is also evidence to show that p. W. 2, his wife santa, and his daughter occasionally take drinks. From the way in which p. W. 2 and p. W. 1 spoke about the drinking habits in the family it looks as if drinking is not a taboo in this family and it is a part of their way of life. There is no positive evidence about the respondent being a habitual drunkard and about his getting drunk as alleged by the petitioner at the stage of evidence. It looks as if this particular part of the story is an exaggeration and an improvement introduced at the stage of evidence while no plea was taken in the petition about his beinga drunkard and his being a habitual drunkard.

(8) It is interesting to see that this theory of respondent being a habitualdrunkard is introduced at the stage of further chief examination which was done with the permission of the court. Originally when the petitioner did not allege about the drunkenness, a rejoinder was filed on 3rd september, 1983 and after this rejoinder was filed, the further chief - examination commenced and drinking habits and drunkenness of the respondent were introduced. This locks as if it is an exaggeration introduced at a later stage as a result of some legal advice.

(9) Judging the entire matter and the entire evidence on record weare convinced that the husband - respondent was occasionally taking drinks but at no time was he found in a drunken condition nor was he found to be an alchobol addict. Considering the back - ground of the families and the sophisticated life the parties were living, occasional consumption of liquor was not considered to be a toboo in their circles. The evidence indicates that even women were taking drinks now and then. In fact the petitioner admits that her mother occasionally takes drinks and her sister occasionally takes drinks and that she herself was taking drinks occasionally prior to the marriage. She claims that she gave up drinking after her marriage. We are convinced that the trial court is not justified in branding the respondent as a drunkard and a habitual drunkard. That finding of the trial court is hereby vacated.

(10) When we read the entire evidence in this case we find that themarriage is somewhat unfortunate from the beginning. The parties met in 1972. They loved each other and in march 1973 the petitioner proposed to her parents the idea of her marrying the respondent. Initially p. W. 2 entertained some reservations because of the differences in the cultural back - ground of the parties and the religion of the parties and he even advised his daughter to wait for sometime and reconsider the matter and then take a decision. The mother of the petitioner seems to have had greater reservations. But ultimately they were happily married at hyderabad on 14 - 6 - 75 under the special marriage act. Just before the marriage the parties got converted to buddhism and then the marriage was solemnised under the special marriage act. The evidence now reveals that the petitioner who is a beautiful, slim and delicate girl had some defects and gynic troubles. It is now in evidence that for some time the consummation of marriage was postponed because of some obstruction in the vagina. It is in the evidence of r. W. 1 that though the marriage was consummated prior to her undergoing an operation the petitioner was complaining of severe pain and then on his advice she got herself examined by a lady doctor and it was found that there was some obstruction in the vaginal passage. The doctor performed the operation and removed the obstruction. It was also found that the petitioner was having discomfort from the sexual act because of an inverted uterus. The inverted uterus and harmonial deficiency were responsible for causing miscarriage of first pregnancy of the petitioner.

(11) There is ample evidence on record to show that while the petitionerwho is of delicate statute and who is a thinly built was little averse to sex ; the husband - respondent in this case was more aggressive in his sexual life and it looks as if the petitioner was not responsive, to his sexual demands and she was not adequate to him in the marital life. It looks as if that all the troubles started because they were unable to adjust themselves in their marital life and conjugal society. It is quite possible that the physical defects of an obstruction in the vaginal passage and the inverted uterus were responsible for the respondent feeling unhappy during the sexual act and gradually she appears to have developed an aversion to sexual life. There is also some indication that the husband was making excessive demands in sexual life and he was occasionally indulging in fiddling with the private parts and inserting his finger in the vagina and indulging in certain abnormal sex practices. It is quite possible that their incapacity to adjust to each other in the sexual life and his excessive demands in sex were causing menial cruelty to the petitioner. There is absolutely no evidence at all that the respondent was causing physical cruelly to the wife.

(12) The evidence reveals that soon after the marriage the petitionerstarted complaining to her parents about her unhappy married life. In the initial months and years it might be due to the excessive demands the tall ard well - built husband was making regarding sexual life and marital obligations and her inability to cope up with him due to her gynic trouble and the obstruction in the vaginal passage. Subsequent to the first pregnancy ending in miscarriage she seems to have become a little withdrawn and she herself admits that she was refusing to have sex with him occasionally. She had a feeling that the first miscarriage was caused due to his having sexual relations with her while she was pregnant. After the second pregnancy she was not responding to him and it looks as if she was being commented upon as being frigid and that she is a cold fish considering the entire evidence of the petitioner, p. W. 1 and r. W. 1 we are fully convinced that the parties to the marriage were not able to adjust themselves to each other regarding the conjugal life and the marital obligations. In addition to this it looks as if occasionally the respondent was not looking after the emotional needs of the wife and he was more interested in the physical aspect of his married life. To make a success of marriage the parties must develop a sense of respect for each other and they must also develop the capacity to adjust to each other. A successful married life does not mean only each person enjoying according to his taste, it requires a certain amount of give and take. In that re. Spect these two highly educated persons coming from very sophisticated back - grounds and affluent families were not able to adjust to each other. Trivial things and trivial instances were magnified and these things were aggravated because of their mental attitudes and the inadequate and unsatisfactory sex life they had. It is now clear that from 12 - 8 - 80 the parties are not living together and for the last 8 1/2 years they had to live apart and it has been represented across the bar that the parties cannot make a success of their marriage and that they would prefer to have the marriage tie put an end to.

(13) As early as in september, 1980 the wife and husband discussedtheir problems in the house of p. W. 2 at hyderabad and they also discussed the matter with the mother of the petitioner. On that occasion p. W. 2 advised them that he would not like to interfere in their married life, but he would advice them to arrive at a solution in a civilized manner. In november, 1980 the petitioner and the respondent informed p. W. 2 that they want to separate from each other and they requested him to get the documents prepared for divorce by mutual consent. Then exs. A - 4 and a - 5 were got prepared. First the papers were taken for signature of the husband at madras. He refused to sign on the ground that the petitioner should sign them first, subsequently when the papers were presented to him with the signatures of the petitioner, he refused to sign and he demanded that if the flat is given to him then only he will sign on exs. A - 4 and a - 5. This naturally upset p. W. 2 and he remarked to the husband that this is not a gentlemanly behaviour, and that the flat belongs to the petitioner. The respondent denies this particular aspect of his demanding the flat as a condition precedent for mutual consent divorce. But the fact remains that ultimately he did not sign the petition for divorce by mutual consent. Subsequently this original petition was filed in 1982.

(14) The fact remains that the petitioner left the husband on 12 - 8 - 80even without informing him. She took away with her, her child aclithi who was born on 28 - 10 - 78. From 12 - 8 - 80 onwards they were living apart and no genuine effort has been made to effect a reconciliation between the parties. It can safely be said that the marriage went on the racks. From attitude of the parties it is impossible for them to live together and in legal parlance the marriage is irretrievably broken. Though there is no provision at present in the statute for granting a divorce on the ground that a marriage is irretrievably broken courts have indicated in several decisions that it is high time for the parliament to amend the law so that the marriages which are irretrievably broken can be dissolved by courts of law. We have to judge the present case in this back - ground.

(15) We have to see whether the wife who filed a petition for divorcehas been able to establish a ground for divorce under section 27 of the special marriage act. Sec. 27 of the special marriage act provides for a marriage being dissolved on the following grounds :

(a) if after the marriage the respondent had voluntary sexual intercourse with any person other than his or her spouse (b) has deserted the petitioner for continuous period of not less than two years (c) is undergoing a sentence of imprisonment for seven years or more for an offence under the indian penal code (d) has since the solemnization of the marriage treated the petitioner with cruelty (e) has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder.

In the present case as we have indicated earlier there is no proof of the husband neglecting the wife nor is there any proof of the wife deserting the husband. It is true the wife left madras house on 12 - 8 - 80 without telling the husband, but subsequently they met several times and discussed the matters. On 12 - 8 - 80 the wife did not entertain the intention of putting an end to the marital tie. It can safely be said that at that stage she did not have the animus deserendi. Subsequent events alone complicated the matter and the parties lived apart. The grounds in clauses (a) (b) (c) and (e) of section 27 of the special marriage act are not applicable on the facts of the present case. The only question we have to consider is whether clause (d) the ground of cruelty is established by the petitioner. We have earlier indicated that there is absolutely no evidence of the respondent causing physical cruelty to the wife. We have to see whether during the period of living togather from 14 - 6 - 75 to 12 - 8 - 80 the respondent treated the wife in such a manner as to cause mental cruelty. In the decision reported in umri bai vs. Chittar (1) a division bench dealing with the groani of cruelty under the hindu marriage act observed as follows :

"the clause applies as well to cases of mental cruelty, which may cause even mere serious injury than physical harm and create in the mind of the injured petitioner such apprehension as is contemplated in the section. The question of cruelty must be determined from the whole facts and the matrimonial relations between the spouses. It has to be determined as a cumulative effect of all the circumstances. Regard must be had to their culture, temperaments, status in life, the state of health of the parties, the interaction between them in their daily life and numerous other factors which cannot be brought in and confined to an exclusive or inclusive definition."

This proposition is not disputed by any one. In the decision reported in sddagangiah vs. Lakshamma (2) a division bench dealing with the cruelty mentioned in sec. 10 (1) (b) of the hindu marriage act observed as follows :

"the fact remains that after the spouses lived together happily for five or six years, their marriage went on the rocks. We should ask ourselves why the matrimonial career of the spouses was wrecked in that way."

"wilful and unjustifiable interference by one spouse in the sphere of the life of the other, is one species of cruelty, in the same way in which rough or demineering conduct or unnatural sexual practices or disgusting accusations of unchastity or adultery, and sometimes even studied unkindness or persistent nagging can in a proper case be regarded as cruelty. But what is sufficiently clear is that the cruelty about which the act speaks is not restricted or confined to acts of physical violence and may extend to behaviour which may cause pain and injury to the mind as well and so renders the continuance in the matrimonial home an agonising ordeal. Such cruelty is equally within the act."

(16) If we judge the facts of the present case in the light of theseprinciples we find that the petitioner has successfully established the charge of mental cruelty. The parties are highly educated people coming from cultured and affluent families and normally they will have highly developed sensitivities. As indicated in the previous paragraphs due to the various reasons including the gynic defects of the wife of the parties did not have adequate and satisfactory sex life. The wife developed an aversion for sex, while the husband was making excessive demands in sexual life. The wife was unable to cope up with the husband in the marital and conjugal obligations. There is also some evidence to show that occasionally the husband was indulging in fiddling with the private parts of the wife and he was also inserting his finger in the vagina and indulging in certain abnormal sex practices. Such practices and the inadequate sex life coupled with the husband commenting against her that - she is frigid and that she is a cold fish and that she is unfit for sexual life did cause mental cruelty to the petitioner. Taking into account the comprehensive facts of this case we hold that the petitioner has established the charge of mental cruelty.

(17) The decision reported in dastanc vs. V. Dastane (3) clearlylays down that the standard of proof to be applied in matrimonial cases is only one of preponderence of probabilities and the standard of proof beyond all reasonable doubt is not applicable. If we consider the entire material in this case there is ample indication to show that the conduct of the husband did cause mental cruelty to the wife. It can safely be remarked that some of his actions are the result of his not having adequate sexual company from his wife. He loved and married her. But unfortunately he found that she was not able to come up to his expectations. As a result of it he was indulging in certain minor abnormal sex practices on few occasions. The court has to view his case with sympathy. But the fact remains that the ground of mental cruelty is established in this case.

(18) Before we part with this case we would like to make it cleatthat the evidence on record clearly establishes that the husband is extremely fond of his child adithi who was born on 28 - 10 - 78. He made several efforts to spend a lot of time with the child and see the child as often as possible. But the conduct oi the respondent and her relations and friends indicates that he was being permitted to see her very rarely and for short intervals only. It is represented that litigation is now pending in the delhi courts regarding the custody of the child. It looks as if the parties are more fighting for the custody of the child rather than to save the marriage. This court is not competent to decide about the custody of the child in these proceedings. It is open to the parties to fight it out in other forums. We make it clear that the petition for custody of the child can be decided by the courts without giving any weight to the findings recorded by the trial judge in these proceedings and the findings recorded by this court in this appeal. Uninhibited by these proceedings and findings the litigation regarding the custody of the child may be decided on independent evidence.

(19) For the various reasons indicated we hold on point no. 1 thatthe husband is guilty of causing mental cruelly to the wife and he is not guilty of causing physical cruelty to the wife. We hold on point no. 2 that the husband is not a habitual drunkard but there is ample evidence to show that he was in the habit of taking drinks occasionally. He was never found in a drunken condition. It is quite possible that under the influence of drink occasionally he was making derogatory remarks about the wife and her parents. Perhaps these remarks were made more out of frustration in sexual life. We also hold that occasionally he was indulging in abnormal sex practices as indicated earlier.

(20) Point no. 4 :for various findings recorded on points 1 to 3,we hold that the trial court is justified in granting a decree for divorce. The various grounds indicated by the trial court are not correct and a decree for divorce is granted only on the ground of the husband being guilty of causing mental cruelty and on the ground that the marriage is irretrievably broken.

(21) In the result the civil miscellaneous appeal is dismissed vacatingsome of the findings recorded by the trial court. The panies are free to light out the litigation regarding the custody of the child in the proper forum uninhibited by the findings recorded by the trial court and in this civil miscellaneous appeal. Each party shall bear its own costs.