Bhojram Barle vs Salit Barle

Heard.

The instant appeal is preferred by the husband against the order dated 25.1.2019 passed by learned 2nd Additional Principal Judge, Family Court, Raipur whereby an application for seeking divorce by the husband was dismissed.

The brief facts of this case are that both the appellant and respondent solemnized their marriage on 15.5.2013 according to the Hindu rituals, thereafter, it was alleged that wife started behaving in an indecent manner, abused the husband and also used to threaten him by saying that she would inculpate his entire family in a case of dowry. This continued up till 13.5.2014, thereafter she left the company of the husband as she started living at Raipur and was engaged in a job of A.N.M. at a Primary Health Centre. Husband further alleges that despite of all the efforts to bring the wife back, everything failed and she denied their relation as husband and wife and used to address the husband as brother (bhaiya). It is further alleged that she never used to put vermilion (sindoor) on her forehead and mangalsutra, whereby used to deny the relation and to be as married lady. Husband further alleged that before filing of the petition in the month of December, 2016, the wife was residing separately at Raipur. The husband further pleaded that whenever he planned for a child, it was vehemently opposed by the wife and even she did not allow to have physical relation in-between. All the incidents caused mental agony which amounts to cruelty, therefore, marriage be dissolved by a decree of divorce.

Per contra, wife denied all the adverse allegations and submitted that she never addressed the husband publically as her brother (bhaiya) and always used to behave as that of a wife, which is expected. She further denied that she ever objected the physical relation and instead it is stated that husband got a job as a technician in an ambulance, he was posted at Bilaspur and at the instance of husband, the wife used to stay at Raipur wherein she was working. She further submitted that she is ready and willing to join the company of the husband, therefore, no cruelty was meted out. It is further stated that on an occasion, when husband came with the members of society, father of the wife advised them since it is late night they can leave in the morning but instead of that they went back, therefore, no cruelty on the part of the wife was done towards the husband.

The learned Family Court framed the issue on cruelty as to whether the husband was subjected to cruelty by behavior of the wife and the finding was in negative, resulting into the dismissal of the divorce petition. The husband being aggrieved by such judgment, filed the instant appeal.

Learned  counsel  for  the  appellant  would  submit  that relations between the husband and wife, about their personal life and physical relations and the narrations were intimate and were known only to each other, therefore, it could not be made public, consequently, the statement given by the husband should have been accepted by the learned Family Court and decree of divorce should have been granted. He refers to the statement of the husband and witness to submit that denial of relation of husband and wife, in public eye, coupled with the fact to deny the physical relation will certainly come within the ambit of cruelty which the learned Family Court failed to consider, therefore, the appeal be allowed and decree of divorce be passed.

Per contra, learned counsel for the respondent would submit that nothing has come on record to substantiate that wife has behaved in such a manner that it would lead to cruelty to husband. He would submit that only omnibus averments have been made which are not supported by independent witnesses, therefore, since there is no admission of any factual behavior instead the denial was made, the judgment and decree passed by the learned Court below is well merited and do not call for interference.

We have heard learned counsel for the parties at length and perused the documents place on record.

The perusal of the petition filed by the husband under Section 13 (A) of the Hindu Marriage Act, 1955 would reveal that the husband alleged that after marriage wife used to tell him that while talking, deformity is caused on your face, you behave like an illiterate man and also used to abuse him. After marriage on 15.5.2013, wife eventually left on 13.5.2014 and started living at her parental house. Further it was pleaded that the husband with the intervention of the society members tried to bring back the wife but she refused to accompany him and therefore, it was stated that during that time wife was working at Raipur, he used to visit wherein the wife advised him not to disclose their relation and she portrayed herself as an unmarried lady and called the husband as brother (bhaiya) before public. The statement of the husband is also in the similar line to the pleading made and would reveal that husband and wife have performed love marriage and after marriage they came to village Kundra, wherein they stayed for 15 days and thereafter shifted to Raipur wherein she got the job in the health department in 2014 and husband also got the job in 2014 as a technician in an ambulance and was posted at Bilaspur and he used to commute in between Bilaspur and Raipur. PW2 Rahul Barle, who is a villager and PW3 Milap Ram Manhar both the witnesses have made similar averments that after marriage, the wife remained in village for two days thereafter both husband and wife came to Raipur. As against this, the averment of the wife would show that she has completely disowned the allegations, instead she has stated that she never denied the physical relation or status of wife or relation of husband and wife in public. She further stated that while she got a job in health department since initially she was a temporary contract worker, as such, she was compelled to stay at Raipur and further in the deposition she stated that she is ready and willing to join the company of the husband. The statement of wife further would show that both the parties were known to each other, consequently, inference can be drawn that both were aware of each other's behavior but it appears that after marriage while the wife started a job at Raipur and husband got a job at Bilaspur, the difference started. So far the relation of husband and wife is concerned, the husband though has stated that the wife denied to have physical relation, but it is completely disowned and denied by wife.

Further the suggestion given to the wife that she refused to stay in the company of the husband because of his poverty, was denied, instead she stated that she can live with husband anywhere. Narrating one incident it is stated that on certain date the husband came with the society member and insisted the wife to go immediately with him, though they were suggested that she would accompany him in morning and were requested to stay for the night but instead the husband went back. The same statement was made by the father of the wife Pawan Kumar.

In the statement of the father of wife, he deposed that his daughter is willing to stay with husband even at Bilaspur. He further deposed that his daughter is working on contract basis at Raipur, therefore, he made prayer that transfer of his daughter be made to Bilaspur or anywhere where both husband and wife can stay together.

Overall assessment of evidence of the witnesses adduced on behalf of husband and wife would show that on trivial issue, the dispute started. Though the husband tried to protect their relation but wife denied the relation in the public eye but except this statement of the husband, the said fact is not supported by any independent witness. If wife was behaving in such a fashion, in an office wherein she is working to show that she is unmarried, obviously, it would be known to everybody and the evidence in this regard could have been produced before this Court. In absence of any evidence, when one statement of husband is denied by the wife then some additional facts were required to be placed on record to draw such inference. Only omnibus allegations have been made, on the contrary, the wife deposed that she is ready and willing to join the company of the husband. Therefore, having overall assessment of the evidence, we are of the opinion that cruelty on which divorce was sought for has not been proved by the husband.

Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other spouse. Cruelty normally has to be distinguished from the ordinary wear and tear of family life and naturally it cannot be adjudged on the basis of the sensitivity of a particular person, when one of the parties to the marriage gives a self-certificate about conduct of the other regarding cruelty. Petty outrageous behavior or differences between the spouses does not come in the ambit of cruelty because this is something that is common in a day to day married life.

In view of the foregoing, we are of the considered view that finding of the learned Family Court is well merited and no interference is required.

Accordingly, the appeal is dismissed.