Ashok Kumari vs Dilip Kumar Yadav

Vinay Kumar Mathur, J.—Heard learned counsel for the appellants and respondents. First Appeal No. 40 of 2008 and First Appeal No. 41 of 2008 respectively have been filed by the appellant (wife) against respondent (husband) u/s 28 Hindu Marriage Act, 1955. Appeal No. 40 of 2008 is directed against the judgment passed by learned Additional District Judge, Court No. 1, Sultanpur in Case No. 458 of 2006 (Ashok Kumari v. Dilip Kumar) u/s 13 Hindu Marriage Act for dissolution of marriage while First Appeal No. 41 of 2008 is directed against the judgment of learned Additional District Judge, Court No. 1, Sultanpur in Suit No. 397 of 2004 (Dilip Kumar v. Ashok Kumari and others) for restitution of conjugal rights.

Learned Court below decided both the cases vide separate judgments dated 14.02.2008 while petition of the appellant for dissolution of marriage was dismissed, the petition of the respondent-husband for restitution of conjugal rights was decreed.

Aggrieved from judgment and order of the Court below, the instant appeals have been filed by the appellant (wife). Since both the appeals relate to matrimonial disputes between the parties. Therefore, for convenience sake they are being disposed of by a common judgment.

The undisputed facts of the instant appeals are that the marriage of the appellant was solemnized with respondent Dilip Kumar Yadav on 03.05.2008 according to Hindu rites while both the parties were minors. After the marriage '' vidai'' had not taken place. It is also not disputed that the left eye of the appellant was damaged prior to her marriage with respondent Dilip Kumar Yadav with little vision left in the eye and was under treatment. It is also not disputed that the respondent''s one eye was also defective at the time of the marriage.

In her petition for dissolution of marriage, the plaintiff-appellant has contended that in the ''bariksha'' a gold ring and Rs. 5100/- cash was given while at the time of ''tilak'' Rs. 2100/- cash and clothes for entire family and other articles costing Rs. 20,000/- were given. Likewise, in the marriage, a gold ring, a gold chain, cycle, she-buffalo, some utensils and other articles were given to the respondent. It is also contended that as plaintiff was minor, therefore, a silver mangalsutra, payal and few sarees only were given and it was assured that at the time of ''gauna'' jewellery and clothes etc. will be given. It is further alleged that after 6-7 months of the marriage, the plaintiff again sustained injury in her left eye. Her father got her treated but as the doctors told that there was a requirement of more money for the treatment which plaintiff''s father was not in a position to afford, therefore, information was sent to respondent and his father for help but they did not pay any heed and consequently left eye of the plaintiff was completely damaged. When the plaintiff turned adult, the defendant and his father did not ask for the ''gauna'', though it was settled that after five years of marriage ''gauna'' will take place. An attempt was made by the father of the plaintiff to persuade the defendant and his father but he was told that since his daughter cannot see from one eye, therefore, he will not make her his daughter-in-law. Defendant''s father also put a condition that in case a Hero Honda motorcycle and cash is given then only he will bring the plaintiff to his home. The persuasion of the plaintiff''s father for reconciliation rapprochement failed. Later the defendant and his father in May 2006 informed that they have filed a case for restitution of conjugal rights in order to save themselves from the proceedings under Dowry Prohibition Act. They further threatened that after obtaining order from the Court they will take the plaintiff and will kill her by giving her poison. It is further contended that the defendant has committed physical and mental cruelty and it is not feasible for the plaintiff to live with the defendant.

The defendant in his written statement has denied all the allegations except the factum of marriage and has further contended that after the plaintiff turned adult, the defendant and his father demanded ''gauna'' but plaintiff''s father deliberately delayed the ''gauna''. No dowry demand had been made by the defendant or his family and in order to usurp the jewellery and costly articles given by defendant''s father, the plaintiff''s father was not willing to send the plaintiff to her husband''s house. A panchayat was also held. It has also been stated that a Suit No. 397 of 2004 for restitution of conjugal rights has been filed by the defendant. It has also been stated that one eye of the defendant is defective while one eye of the plaintiff is also defective and since there was defect in one eye of both the parties, in view of this their parents had agreed to solemnize the marriage without any dowry. It has also been stated that the defendant is ready and willing to keep the plaintiff with him as his wife. It has also been pleaded that plaintiff is refusing to live with him without any rhyme or reason. It has also been stated that if the plaintiff is not willing to live as wife in that case the jewellery and clothes and other expenses incurred in the marriage are liable to be returned to the defendant.

On the basis of pleadings of the parties, the following issues were framed:--

(i) Whether the petitioner has deserted the defendant without any reason and justification and is residing in her ''maika''?

(ii) Whether the defendant after harassment has turned out the petitioner from his home?

(iii) Whether the petitioner is entitled to any relief, if so to what relief?

(English translation supplied)

The plaintiff to prove her case has examined herself as PW-1, Ganga Prasad as PW-2 and Ram Kishore Yadav as PW-3, all of them were duly cross-examined by the defendant. In rebuttal the defendant has examined as DW-1 and Ram Snehi DW-2 both were cross-examined by the plaintiff. The Court below has decided all the three issues together and found that since the instant petition has been filed after a gap of two years from the filing of the suit for restitution of conjugal rights, therefore, it cannot be said that defendant is not willing to keep the plaintiff, with him. It has been held that the grounds, for not residing with the defendant and inability to carry out the duties of wife as have been pleaded by the plaintiff are not justified for a decree of divorce. It has also been observed that the plaintiff herself has stated that the defendant Dilip Kumar wants to take her but she does not wish to live with him. In this view, it has been held that the plaintiff is not entitled for a decree of divorce and consequently the petition has been dismissed.

The facts relevant for the disposal of the Appeal No. 41 of 2008 stated in brief are that respondent No. 1 filed Suit No. 397 of 2004 (Dilip Kumar Yadav v. Ashok Kumari & others) u/s 9 of the Hindu Marriage Act contended that the marriage between the plaintiff and defendant No. 1 had taken place according to Hindu rites on 03.05.1998 as defendant No. 1 was a minor, the ''vidai'' had not taken place after defendant No. 1 attained majority, the plaintiff and his father requested to fix a date for ''gauna'' but defendant No. 2 on one pretext or the other deferred the ''gauna''. The marriage had taken place without any dowry while the plaintiff had given valuable clothes and jewellery etc., in order to usurp clothes and jewelry defendant No. 2 did not want ''gauna'' to take place and send her to plaintiff''s house and intends to re-marry the defendant No. 1 elsewhere. It has also been contended that the defendant No. 1 has refused to perform the duties and obligation of wife. In the written statement, the marriage has been admitted and it has been contended that one eye of the defendant No. 1 was slightly damaged and after 6 to 7 months of the marriage, defendant No. 1 sustained another injury for which money was needed and it was not possible for defendant No. 2 to bear the expenses. It has been alleged that plaintiff did not take care of defendant No. 1. Cash, jewellery, clothes and other articles details of some of which have been provided were given in ''bariksha'' ''tilak'' and marriage while only one mangalsutra, one payal and some sarees had been given by the plaintiff''s side. ''Gauna'' was not demanded and later on, the plaintiff refused to take the defendant No. 1 on the ground that he will not take a blind ''bahu''. A demand of one Hero Honda motorcycle and cash was made as a pre-condition for ''gauna'' and when inability was shown, the defendant was treated with cruelty. Further it is not safe for the defendant No. 1 to live with the plaintiff. On the basis of pleadings the parties, the following issues were framed:--

(i) Whether the defendant without any valid reason and justification is residing in her ''maika'' and has deserted the petitioner?

(ii) Whether the defendant has been turned out of the house by the petitioner after harassing her?

(iii) Whether the petitioner is entitled for any relief, if so to what relief?

(English translation supplied)

The plaintiff has filed affidavit 21/A/2 and was cross-examined while Ashok Kumari/defendant No. 1 has filed affidavit 29/A/2 and has undergone cross-examination. Ram Kishore Yadav DW-2 has filed his affidavit 30/A/2 and was cross-examined. The petition has also filed receipts of jewelry and other articles purchased by him through paper Nos. 21/C/1, 28/C/1. The Court below has decided all the three issues together and has found that the petitioner was willing to keep defendant No. 1 as his wife and has made efforts for this but without any reason, the defendant No. 1 has deserted the petitioner and has deprived the petitioner of his matrimonial life. Therefore, the petitioner is entitled for restitution of conjugal rights.

I have heard learned counsel for both the parties and perused the record.

Learned counsel for the appellant has submitted that unfortunately the plaintiff/appellant has lost sight of the other eye also and she has turned complete blind. The marriage had taken place during the minority and after the marriage, when the parties attained majority till date the husband has completely neglected the appellant and has not paid any maintenance. The marriage has not been consummated and this fact is not disputed. An attempt was made to resolve the dispute through mediation and it did not succeed. The ground for desertion was fully established but the learned Lower Court disbelieved it and has adjudicated purely on the basis of conjectures and surmises and without properly appreciating the evidence. The Court below has also not considered the legal provisions correctly in its judgment. It is not feasible for the parties to live together and there is every apprehension that the life of the appellant will be in great peril in case she is directed to reside with the respondent and perform conjugal duties. Further submission is that Section 5 of Hindu Marriage Act provides condition for a Hindu marriage. Section 5(iii) prescribes that the essential qualifications for a valid marriage are that the bridegroom has completed the age of 21 years and the bride has completed the age of 18 years at the time of marriage. Admittedly, both the parties were minors at the time of solemnization of marriage. The consequence of such a marriage will be that if the requirement of Clause IV of sub-section (2) of Section 13 are satisfied at the instance of bride a decree of divorce can be granted. Section 12 deals with voidable marriages and it has been provided u/s 12(i)(a) that if the marriage has not been consummated owing to the impotence of the respondent, the parties are liable for punishment u/s 18. Section 13(ib) provides that any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The other ground available for a decree of divorce has been enumerated in Section 13(i) Clause (ia) which provides that the other parties has after the solemnization of the marriage, treated the petitioner with cruelty. The divorce petition has been filed on the basis of grounds provided u/s 13(ia)(ib). Submission is that the learned Court below has arbitrarily ignored the admitted case of the appellant that the respondent has deserted the petitioner for a continuous period of more than two years immediately preceding the presentation of the petition and has not demanded ''gauna'' and the marriage admittedly remains unconsummated. The allegations of cruelty by the respondent was also fully established. The decree for restitution of conjugal rights could not have been passed on mere filing of a petition for restitution of conjugal rights u/s 9 of Hindu Marriage Act. Likewise, it cannot be interpreted on the basis of filing the petition for restitution of conjugal rights prior to the petition u/s 13 of Hindu Marriage Act that the wife is not residing with her husband without any valid ground and the respondent was keen or willing to keep the appellant with him as his wife. The finding is purely based on conjectures & surmises. Reliance has been placed upon the judgments rendered in Naveen Kohli Vs. Neelu Kohli, , Samar Ghosh Vs. Jaya Ghosh, & Suman Kapur Vs. Sudhir Kapur, .

Learned counsel for the respondent has defended both the judgments and decrees of the Court below and has contended that the respondent was willing to keep the appellant with him as his wife and had in fact filed a petition u/s 9 Hindu Marriage Act prior to the initiation of the proceedings of Section 13 of Hindu Marriage Act. Therefore, the bona fides of the respondent cannot be doubted and the Court below has rightly held that the ground for divorce is not made out. Further submission is that the appellant was not subjected to physical or mental cruelty and there was no question of desertion as the ''gauna'' has not taken place. The purpose of filing a petition for divorce is that the father of the appellant wanted to usurp the gifts which have been given in the marriage by the respondent''s side. There was no dowry demand, the allegations contrary to it are false. The appellant without any justification refused to reside with the respondent and her refusal is not justified. Both the judgments and decrees do not warrant any interference and are liable to be maintained.

Issues in both the petition u/s 9 as well as u/s 13 framed by the learned Court below are identical though separate trials were held in both the petitions and evidence recorded separately. It is not fn dispute that at the time of the ''marriage both the parties were minors and the consent was given by their guardians. The marriage had taken place on 03.05.1998 arid the consummation has not taken place. In Naveen Kohli Vs. Neelu Kohli, relied upon by the counsel for the appellant, it has been clarified that the cruelty as ground of divorce may be either physical or mental. It is a pre-condition that the decree of divorce may be passed when irretrievable break down of marriage has taken place. It has been observed in paragraph 35 of the judgment that it is not necessary for a party claiming the divorce to prove that the cruel treatment is of such a nature as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to him or her to live with the other party. In para 68 of the judgment the Hon''ble Court has quoted a paragraph while interpreting irretrievable breakdown of marriage wherein it has been observed that when the matrimonial relation has ceased to exist de facto it should, unless there are special reasons to the contrary, cease to exist de jure also. The Hon''ble Supreme Court has further observed that in general, it is not in the interest of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated and its further continuance is in general not merely useless but mischievous. In para 72 of the same judgment, the Hon''ble Apex Court has observed that once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has been broken down. The Hon''ble Apex Court in Para 74 of the judgment has further observed that once the marriage has broken down beyond repair it would be unrealistic for the law not to take notice of fact, and it would be harmful to society and injurious to the interests of the parties. In paragraph 76, it has been observed that since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist. In Samar Ghosh v. Jaya Ghosh (supra) also relied upon by the learned counsel for the appellant, Hon''ble Apex Court has observed that in case of irretrievable break down of marriage refusing to severe the marriage tie despite the irretrievable break down will not be proper. The law in such cases does not serve the sanctity of marriage. On the contrary it shows scant regard for the feelings and emotions of the parties, in such like situations, it may lead to mental cruelty. The judgment of Naveen Kohli Vs. Neelu Kohli, has been followed in Suman Kapur Vs. Sudhir Kapur, it has been held by Hon''ble Apex Court that continuous cessation of marital intercourse or total indifference on the part of the wife towards marital obligations would lead to legal cruelty.

The Court below in its judgment has observed that during the minority, if the petitioner had suffered from any pain or diseases, the liability thereof cannot be fastened upon the respondent as he too was minor. It has also been observed that no proof of any treatment has been filed by the petitioner-appellant. It has held that it cannot be inferred that the defendant-respondent was not willing for ''gauna'' and considering the social and financial status of the parties, the conduct of respondent does not fall within the category of cruelty. Learned Court below has further observed that the petitioner has herself stated that she does not wish to live as wife with respondent.

In view of the case laws referred to above and in view of the evidence, I am of the considered view that in the facts and circumstances of the instant appeals there appears to be an irretrievable break down of marriage between the parties and no fruitful purpose will be served by compelling the appellant to live with respondent. It appears that learned Court below was swayed away on the sole ground that the petitioner had filed a petition u/s 9 of the Hindu Marriage Act earlier to that of the petition u/s 13 of the Hindu Marriage Act for dissolution of marriage by the wife and on this ground it has held that willingness of the respondent to keep the appellant (wife) cannot be doubted. The respondent has only filed a petition u/s 9 of Hindu Marriage Act for restitution of conjugal rights but beyond it, despite evidence to the effect that on sustaining injury for the second time in the eye and the fact that the father of the appellant (wife) was not in a financial position to meet the expenses of treatment, apprised the respondent and his father still no heed was paid by them and no attempt even to enquire the welfare of the appellant was made, thus complete neglect on the part of the respondent is established. The Court below also did not consider the aspect that cruelty does not mean only physical cruelty but includes mental cruelty as well. The marriage has not been consummated. The wife and respondent had not lived together for a period of more than 8 years when the judgment was passed and now a further period of 5 years has passed and there is no statement by either side to the effect that they have started living together, rather both the parties are vehemently pursuing their cases. Not taking care of a legally wedded wife even when she is in extreme trouble and throughout showing neglect and indifference to my mind amounts to mental cruelty. Further the other ground of desertion taken by the wife is also made out. Desertion does not necessarily mean that the husband and wife must have lived together for some time and thereafter either of the two might have left the company of the other. In the instant case, it has been alleged by the appellant that no ''gauna'' was demanded. The plea of the respondent that father of the appellant was not willing to send the appellant so, that he may not have to return the articles, jewellery and valuable clothes etc., which are, alleged to have been given in the marriage by the respondent family, appear to have no force and does not inspire confidence because no father would ruin the life of his blind daughter on the basis that he intends to misappropriate'' some jewellery, clothes etc., more particularly in the situation when it is not disputed that both the parties are poor. An apprehension has been expressed by the appellant that her life I will not be safe in case she is forced to live with the respondent. The practical aspect has also to be taken into consideration in the instant matrimonial dispute. The wife has turned blind as the vision of her second eye has also gone. Thus shells dependent upon her father I and no overt act on the part of the respondent has been shown, except filing of petition u/s 9 which may convincingly establish that the respondent is keen to keep the appellant with him as his wife and will keep her comfortable and will provide her a descent life despite her handicap and will keep due care of her.

In this view of the matter, my view that the marriage has reached to the point of irretrievable break down is further fortified and in my view the subsistence of the marriage will not be in the interest of both the parties and no fruitful purpose will be served by compelling the appellant to live with respondent and perform her conjugal duties after a gap of almost 13 years of the marriage, consequently, the appeals deserve to be allowed.

The First Appeal No. 40 of 2008 is allowed and the judgment and decree passed in Suit No. 458 of 2006 (Ashok Kumari v. Dilip Kumar) dated 14.02.2008 by Court below is set aside and the suit for dissolution of marriage by the appellant (Ashok Kumari) is decreed. The marriage between the parties solemnized on 03.05.1998 is dissolved. The First Appeal No. 41 of 2008 is also allowed and the judgment and decree of the Court below dated 14.02.2008 passed in Suit No. 397 of 2004 (Dilip Kumar v. Ashok Kumari and others) u/s 9 of the Hindu Marriage Act is set aside. No order as to costs.