Atul Kumar Jain vs Mamta Jain

S.K. Palo, J.—The appellant/husband has instituted this appeal u/s 19 of the Family Court Act read with Section 28 of the Hindu Marriage Act, 1955 assailing the judgment dated 27.08.2009 passed by the Principal Judge, Family Court, Gwalior in Case No. 150A/2007(H.M.A.) by which the learned Family Court disallowed the application filed by the appellant/husband u/s 13 of the Hindu Marriage Act for dissolution of the marriage.

It is not disputed that the appellant and respondent are husband and wife. Their marriage was solemnized on 19.11.1995 by observing Hindu rites.

The facts requisite to be stated for adjudication of the appeal are that the non-applicant wife filed an application u/s 9 of the Hindu Marriage Act which was decided as Case No. 44/1999 by the V Additional District Judge, Bhind passing an order of restitution of conjugal rights. An appeal was preferred against this order before the High Court of Madhya Pradesh, Bench at Gwalior. This appeal was decided on 28.07.2005. The respondent/wife did not take any action for restitution of conjugal rights. After her marriage, she stayed at her matrimonial house only for 13 days and since 12.03.1996 they have been residing separately. The possibility of their living together is almost nil. Non-applicant respondent has lost her vision claiming there the appellant husband has filed this application for dissolution of the marriage. Respondent wife for the first time filed an application for execution on 02.12.2002 for compliance of the decree of restitution of conjugal rights.

The non-applicant wife resisted the petition for divorce. She claimed that the applicant/appellant had filed an application u/s 13 of the Hindu Marriage Act which was earlier registered as Case No. 59A/1999(H.M.A.) subsequently transferred to the Family Court and registered as Civil Suit No. 33A/2002 and was decided on 07.12.2004 in which the decree of divorce was granted. The respondent wife challenged this decree before the High Court which was instituted as F.A. No. 04/2005. The Hon''ble High Court dismissed the same vide judgment dated 20.05.2006. This judgment is operating as res judicata against the appellant husband. The appellant husband and his family members were demanding dowry and received Rs. 5,21,000/- as dowry and were demanding Maruti Car, Colour Television and Rs. 5,00,000/- cash. The appellant/husband did not comply with the decree for restitution of conjugal rights. The non-applicant wife filed execution for restitution of conjugal rights. She has stated that she is always prepared to live with the appellant/husband but the appellant husband did not want to live with the respondent/wife. It is not true that before her marriage she lost her vision. When she had gone to put wet clothes on the terrace her mother-in-law pushed her. She suffered an injury. Since, then she lost her sight. She has claimed the gold ornaments allegedly taken from her by her in laws and cash of Rs. 5,21,000/- given to the appellant husband at the time of marriage. The non applicant wife prayed to provide permanent alimony U/s. 25 of the Hindu Marriage Act 1955 at the rate of Rs. 8,000/- per month from the appellant/husband and also demanded compensation u/s 35A of CPC.

After adducing evidence, the learned Family Judge has held that the present petition is not tenable, the applicant husband is not complying directions passed in the decree for restitution of conjugal rights and dismissed the suit with a cost of Rs. 1,000/-.

Aggrieved by this, the appellant husband has filed this present appeal on different grounds. Appellant has submitted that this petition u/s 13 doesn''t operate as res judicata. The Court below while deciding the issue erred in holding the same. The Court below has not properly appreciated the statements of the appellant and his witnesses. From the evidence brought on record, it is clear that the respondent wife has not visited the appellant/husband for more than 11 years and she is not willing to live with the appellant even after obtaining a decree of restitution of conjugal rights.

Therefore, the appellant husband is entitled to a decree of divorce. The findings of the learned Family Court is, therefore, vitiated and deserves to be set-aside. It is further claimed that the appellant husband has been deprived of cohabitation by the respondent. This act of respondent wife falls under the definition of "cruelty". On this ground also the appellant husband is entitled for a decree of divorce. But contrary to the evidence on record the learned Family Court has decided issues No. 2 & 3. In this count also the impugned judgment and decree deserves to be set-aside.

After the decree of restitution of conjugal rights on 16.12.1999, the respondent wife did not live with the appellant nor she took any steps to execute the decree till 2nd December, 2002. This shows that the respondent wife is not interested to live with the appellant husband and deserted for more than 11 years. In such circumstances, the decree passed by the Court below deserves to be set-aside.

The appellant husband has taken a plea that they are living separately for more than 11 years. Their marriage has been irretrievably broken down. There is no possibility of their reunite. The learned Family Court contrary to the principles laid down by the Hon''ble Apex Court has dismissed the petition of the appellant which deserves to be set-aside.

We have gone through the record and perused the evidence adduced.

The respondent wife has admitted that after their marriage she stayed for 11 days at her matrimonial home and in between these days she had also gone out for 5-6 days with her husband. After three months, she returned to her matrimonial home along with her father. She stayed there for another 5-6 days. Then she came to her maternal home with her husband, since then, she has been living at her maternal home. That means, excluding 5-6 days which she went to Vaishnav Devi after marriage she remained at her matrimonial home, for only 12 days

There has been no report regarding the demand of dowry. However, the non-applicant stated that she lodged a report regarding demand of dowry in January, 1997. The respondent/wife also admits that on her report for demand of dowry a criminal case was instituted against the appellant husband. In that case, the husband and her family members were sentenced to two years imprisonment each. On filing an appeal, they were acquitted. She challenged the order of acquittal before the High Court. She has every right to challenge the judgment. It indicates that she has no intention whatsoever to live at her matrimonial home.

Exhibit P-3 is the certified copy of the statement of Dr. V.C. Tiwari recorded in the earlier case before the VII Additional District Judge, Gwalior. Dr. U.C. Tiwari has stated that the respondent wife is suffering from ratiniotis phymentosa which causes 100% disability of eyes. This disease is hereditary. It occurs in between 11 years to 20 years of age and the person looses vision and the decease is incurable.

Going by the medical opinion, as the respondent wife was 34 years at the time of her deposition i.e., 13.02.2008, that means in the year 1994, she was almost 20 years and this ailment must have started approximately before 1994. The marriage of the appellant with the respondent was solemnized in the year 1995. Meaning thereby, possibility cannot be ruled out that before her marriage she was suffering from the decease. As alleged by the appellant husband that prior to the marriage she lost her vision seems to be probable. He also alleged that it is a incurable disease. This fact was suppressed and the marriage of the respondent wife was performed with the appellant.

The appellant has claimed a decree of divorce on the ground of desertion and cruelty. The appellant/husband and the respondent wife were living separately for last 12 years when the petition u/s 13 of the Hindu Marriage Act was filed. After the decree of restitution of conjugal rights also there has been no positive sign of the respondent to live with the appellant. Deprivation of marital obligation amounts to ''cruelty''.

In Samar Ghosh Vs. Jaya Ghosh, a three-Judge Bench, after dealing with the concept of mental cruelty, has observed thus:-

"99. The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances...."

''Cruelty'' has not been defined in the Hindu Marriage Act, 1955. The word "Cruelty" in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula.

In the case at hand, the appellant husband has clearly deposed that the respondent wife ill treated in as much as she had shown her immense dislike towards his family members and has exhibited total indifference.

Besides, there was a case u/s 498A of IPC instituted at the instance of the non-applicant wife. This, in fact, strained their relationship more. It also maladroit effort to malign the reputation of the appellant husband''s family members, That being so, it is practically not possible for both of them to live together.

It is evident from the record that the non-applicant wife has not endeavored to reunite herself with the appellant/husband and there had been a long lapse of time since they had lived together as husband and wife.

On the aforesaid foundation, a conclusion can be safely drawn that there is an animus deserendi on the part of the respondent/wife.

From the foregoing analysis, it is established that the appellant husband has proved his case of mental cruelty and also desertion.

It is also admitted fact that the appellant husband is living separately and is earning as a Chartered Accountant in a company named Bharat Marketing at Kanpur. The respondent wife is not earning anything. She has lost her vision and is having no source of income.

The non-applicant wife in her reply claimed alimony to the tune of Rs. 8,000/- per month besides the suit expenses.

We are of the opinion that it is the duty of the Court that the wife lives with dignity and comfort and not in penury as has been observed in U. Sree Vs. U. Srinivas, by the Hon''ble Apex Court. In the words of the Apex Court "the living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune. Regard being had to the status of the husband, the social strata to which the parties belong and further taking note of the orders passed of this Court on earlier occasions, we think it appropriate to fix the permanent alimony ''..........................".

We may profitably refer to the decision of the Hon''ble Apex Court in Chand Dhawan (Smt) Vs. Jawaharlal Dhawan, in which it is held that the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under Sections 9 to 14 of the Act. When by court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.

We also observe that on the ground of irretrievable breakdown of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances that the Court may use this ground for dissolving a marriage.

Regard being had to the status of the husband and the condition of the respondent wife, we pass the following orders:-

(a) We allow this petition u/s 13 of the Hindu Marriage Act and pass a decree of divorce in favour of the applicant husband and against the non-applicant wife, thereby declaring dissolution of their marriage performed on 19.11.1995.

(b) A lump sum permanent alimony of Rs. 15 lacs (Rupees Fifteen Lacs) is awarded in favour of the respondent/wife which shall be deposited before the Family Court, Gwalior in the following manner:-

(i) 50% of this amount has to be deposited within one month from today,

(ii) 25 % of the amount has to be deposited within next three months; and

(iii) Rest 25% has to be deposited by the appellant/husband within next three months.

(c) The Family Court, Gwalior is directed to see that Rs. 10,00,000/- (Rupees ten lacs) be kept in fixed deposit in the name of respondent wife in any nationalized bank in such a manner that the respondent wife receives the interest through her saving account every month. The rest amount of Rs. 5,00,000/- (Rupees five lacs) be paid to the respondent wife by account payee cheque for her immediate needs.

(d) If the appellant husband fails to deposit the amounts as mentioned above, this decree of divorce would be deemed inoperative.

With the aforesaid directions, this appeal stands disposed of. No order as to costs.