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Judgment
The present misc. appeal is filed by appellant-husband assailing the judgment & decree dated 29.01.2005 passed by ld.
Family Court, Ajmer, wherein the application filed by the husband under Section 13(1) of the Hindu Marriage Act seeking decree of divorce on the ground of cruelty, has been dismissed.
The facts in nutshell are that the appellant-husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of marriage on the ground of cruelty wherein it was averred that he was married to respondent on 02.12.1988 at Ajmer as per Hindu rites and out of the said wedlock, two children (one son and one daughter who were aged 11 and 7 years at the time of filing application) were born.
The appellant pleaded in his application that for sometime, the wife behaved normally but on being appointed as Senior Teacher in Government service, her behaviour changed. She started quarreling with parents of the appellant and also refused to attend daily household work on the pretext of getting tired. Day by day her behaviour became more atrocious as she started harassing the parents of the appellant. On 09.05.2001, she left the matrimonial home along with her clothes and ornaments after insulting the mother of the appellant while the appellant was out.
She also retained both the children with her and thereafter, she never returned. The appellant tried to persuade her but it was of no consequence. Ultimately, the appellant got a notice dt.
14.05.2001 served on her through his counsel asking her come back and to restore the matrimonial bond. The respondent sent a reply making wild allegations against the husband and his parents and also refused to join the husband. Thus, the appellant had to file the application for a decree of dissolution of marriage on the ground of cruelty against the wife.
The respondent-wife filed reply and denied all the allegations of cruelty and averred that she had to join service out of the pressure from her in-laws. The appellant remained posted out of Ajmer in the meanwhile for some period, and lastly, he was posted in Ajmer in the year 1996. It was also averred that the appellant did not have cooperative attitude and she was always insulted and harassed. According to the respondent, there had been some exchange of hot words on 09.05.2001 while she was getting ready for the school. She was pushed, dragged and even beaten with shoes and as such, she felt insulted, apprehensive and left for the house of her sister. It was further averred by the respondent that she was herself a victim of atrocities on account of the husband being a man of stubborn, angry and assaulting nature. She also alleged that an application was also made to the court for mutual divorce on 09.10.2001 on account of pressure on her which was later on got withdrawn by her.
On the basis of the pleadings of the parties, the following issues were framed-"VERNACULAR MATTER OMITTED"
Both the parties examined themselves in support of their averments and produced no other witness.
The Family Court on the basis of evidence on record has decided issue no.1 regarding cruelty against the appellant and dismissed the petition for dissolution of marriage.
The learned counsel for the appellant has urged that the learned Family court has seriously erred in deciding the issue of cruelty against the appellant, whereas there was enough material and evidence to show that respondent had caused great mental torture to the appellant by her various acts.
The learned counsel for the appellant has urged that in spite of specific instances relating to cruelty, the learned Family Court has passed the impugned order on surmises and conjunctures.
The learned counsel further urged that apart from not looking after mother of the appellant, the respondent right from the beginning had used pressure for living separately and the respondent by replying to the notice served on her for joining the matrimonial home, levelled reckless allegations against him branding as a gambler, father of the appellant was alleged to indulge in selling liquor in open market meant for armed personnel and further levelled reckless allegations of demand of dowry, insulting, etc.
The learned counsel for the appellant has submitted that the respondent-wife had moved application along with the appellant under Section 13-B of the Hindu Marriage Act on 12.10.2001 seeking divorce on mutual consent and she had made her intention clear of not to stay and live with the appellant, the appellant has alleged that the respondent later on changed her mind to harass the appellant by withdrawing her application.
Learned counsel for the appellant has further argued that the respondent had left for no reason her matrimonial home on 09.05.2001 and thereafter, she never came back and as such, the long period of continuous separation, does not serve the sanctity of marriage and it shows scant regards for the feelings and emotions of the parties and in such a situation, it amounted to mental cruelty.
Learned counsel for the appellant has relied upon the judgments of apex Court in the case of Samar Ghosh Vs. Jaya Ghosh, 2007(4) SCC 511, Naveen Kohli Vs. Neelu Kohli 2006 (4) SCC 558, Satish Sitole Vs. Smt. Ganga, 2008(7) SCC 734 as well as judgments of this Court in the case of Monika Vs. Chandra Prakash (D.B.Civil Misc. Appeal No.2239/2013), decided on 15.05.2015 and Alka Gupta Vs. Anil Kumar Sharma (D.B.Civil
Misc. Appeal No.1047/2015), decided on 02.06.2016.
Per contra, the learned counsel for the respondent-wife has supported the impugned order passed by the learned Family
Court. The learned counsel has urged that the court below on the basis of material available on record, has correctly come to the conclusion that various alleged acts of cruelty were not enough to prove the basic requirement of proving the ground of mental cruelty and as such, it has been urged that the impugned judgment does not require any interference by the Court and the said judgment is legally tenable.
We have scanned the record and considered the rival submissions urged at the bar.
From the perusal of the deposition of the appellant, the situation becomes apparent that the respondent-wife joined government service as Senior Teacher and relations between the husband and the wife became strained. The incidents relating to not taking care of mother of the appellant on two crucial occasions of medical treatment reveal that the respondent-wife was reluctant to take care of his mother-in-law. This deposition of the appellant further shows that the respondent had left the matrimonial home on 09.05.2001 at her will along with her children, jewellry, clothes, etc.
A notice was given by the appellant to the respondent through his advocate asking her to return and restore matrimonial ties and the same was admittedly replied by the respondent where she refused to return back and made allegations against the appellant of demand of dowry, assaulting her and indulging in gambling. The respondent further made an allegation that father of the appellant indulged in selling liquor meant for armed personnel on higher rates in open market.
The said fact was admitted by the respondent in her cross-examination and she tried to explain that these facts were made part of the reply by her advocate without her notice while she wanted to live with the appellant.
In opinion of this Court, the reckless allegation about the father of the appellant and against appellant himself, definitely lead to a situation where a person is charged of allegations and imputations, levelled without any credence.
It will be relevant to quote the extract of cross-examination of the respondent, which is as under:-
"VERNACULAR MATTER OMITTED"
The close scrutiny of the evidence reveal that the appellant was able to prove that because of stubborn behaviour of the respondent, her lack of cooperation in discharging her duty to take care of mother of the appellant at crucial time of illness, continuous pressure to live separately, her views to lead an independent life and construction of separate house at Ajmer, levelling reckless allegations against the appellant and his father in reply to the notice, were all necessary ingredients to prove the ground of cruelty on which the appellant ought to have been granted a decree of divorce.
Cruelty, which is a ground for dissolution of marriage, is willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental or as to give rise a reasonable apprehension of such a danger. The mental cruelty falls within purview of a matrimonial wrong. The cruelty has been used in relation to human conduct and human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. Cruelty can be intentional or unintentional. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be by conduct, words, gestures, by a mere silence, violent or non-violent.
The various decisions of the Apex Court lay down the principle of adjudging the cruelty. The Apex Court in the case of Narendra Vs. K.Meena [(2016) 9 Supreme Court Cases 455], while dealing with the issue of mental cruelty by leveling baseless allegation without foundation has found it to be a very serious nature and it has been held that such kind of baseless and false allegation surely can be a cause for mental cruelty. The Apex Court has held in the said judgment as under:-
"15. With regard to the allegations about an extra- marital affair with maid named Kamla, the re- appreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had levelled allegations with regard to an extra-marital affair of the appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one's character of having an extra-marital affair is quite torturous for any person - be it a husband or a wife.
We have carefully gone through the evidence but we could not find any reliable evidence to show that the appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra- marital life to be quite serious and that can surely be a cause for metal cruelty.
This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, has held as under:-
"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."
The Court finds that the allegations of atrocious and insulting behaviour of the respondent with the appellant and his mother were causes of strained relations. This is substantiated from the fact that the respondent had herself made an allegation that in sequence of continuous atrocities to her, she was pushed, beaten and dragged out of the house by the appellant on 09.05.2001. The respondent has choosen not to disclose the actual reason behind the said incident and she meant to say that it happened on some inconsequential pretext. This further shows that the respondent had been responsible for her atrocious allegations, actions and behaviour amounting to cruelty.
This Court is of the view that the learned Family Court has failed to decide the issue of cruelty in right perspective.
Accordingly, the finding of learned Family Court on issue nos. 1 & 2 is liable to be set aside and the marriage of the appellant with the respondent is liable to be dissolved.
Consequently, the appeal filed by the appellant is allowed and the judgment & decree dated 29.01.2005 passed by ld. Family Court, Ajmer is set aside. Their marriage solemnized between the parties on 02.12.1988 stands dissolved and the appellant-husband is held entitled for the decree of divorce. Registry to do needful.
No costs.