Binda Bai Kashyap vs Ramashankar Kashyap

The instant Appeal is directed against the judgment and decree dated 31st January, 2020 passed by the Additional Principal Judge, Family Court, Bilaspur, District Bilaspur in Civil Suit No.135-A/2016 whereby, a decree was passed in favour of the Respondent/husband and the marriage between the parties which took place in the year 2006 was dissolved by a decree of divorce. The Appellant/wife is in Appeal before this Court.

The Respondent/husband preferred a Petition before the Family Court stating that his marriage with the Appellant/wife took place in the year 2006 and out of the said wedlock, two girls were born. Subsequent to the marriage, the Respondent/husband was selected as siksha karmi and was posted at village Bijadaija, Tahsil Takhatpur, District Bilaspur wherein, they started living. The Respondent/husband states that till 2011, the relations between them were cordial but when the Appellant/wife used to talk hours together over the phone, the same was objected by him. The Respondent/husband alleges that the Appellant/wife used to talk with a person outside the marriage and despite his advice, she did not mend her ways and continued to talk with the third party. As per the Respondent/husband, in the year 2011, she purchased a new mobile and gifted it to the person with whom, she was in talking terms on phone and having been confronted with the same, she has stated that she would not repeat such mistake. The Respondent/husband further alleges that because of the uncontrolled expenses of the Appellant/wife, she was not able to cut her needs, as such, she committed theft in the household property of the landlord where they were living and when she was caught, she admitted her guilt and by such activity, the entire image of the Respondent/husband, who was working in a school as a teacher, was tarnished. Subsequently, due to such incident, the relationship between the husband and wife became sour and as such, the Appellant/wife along with her children shifted to her parental house. Thereafter, different applications were filed and a false report was also made by the Appellant/wife under Section 498-A IPC. The Respondent/husband further alleges that due to such activities, the wife has deserted, therefore, he is entitled to a decree of divorce.

In reply to the averments made, the Appellant/wife denied all the allegations and stated that she has neither admitted her guilt nor executed any affidavit whereby she admitted her behaviour to be a cruel one. The Appellant/wife further states that as she gave birth to two girls, therefore, she was subjected to cruelty for not being able to give birth to a male child and under these circumstances, she was driven away from her husband and was forced to stay at her parental house.

On this averment, learned Family Court has framed issues on the ground of cruelty and desertion. The Respondent/husband examined himself as also two witness whereas, the Appellant/wife examined herself alone. After affording an opportunity of hearing to the parties and after evaluating the entire facts and evidence, the learned family Court found that the ground of desertion is not proved, however, ground of cruelty was answered in affirmative and the suit was allowed with a decree of divorce.

Learned Counsel for the Appellant/wife submits that the learned Family Court has completely misjudged the evidence and given a wrong finding as though certain documents were confronted, but she has never admitted the same. He further submits that the nature of allegations which were levelled against the Appellant/wife would show the state of mind of the Respondent/husband and even if the allegations are gone through, they do not prove the factum of cruelty. He further submits that since the Respondent/husband is working as sikshakarmi and the Appellant/wife has to maintain two daughters one of whom is disabled, proper alimony should also be granted to her and as such, the judgment and decree passed by the learned Court below requires to be interfered with.

Per contra, learned Counsel for the Respondent/husband submits that the allegations that the Appellant/wife has committed theft in the house of the landlord was admitted by her and her signature confronted during her examination-in-chief which was also admitted would show that she admitted all the facts, thereby the guilt. He further submits the fact that the Appellant/wife was in proximity with a person outside the marriage can be inferred from the statement given in the cross-examination, which itself proves the cruelty. He further submits that commission of theft which was admitted before the villagers would never lead to tarnishing of the image of the Respondent/husband, who is primarily a teacher, therefore, the judgment and decree is well merited and does not call for any interference.

We have heard learned counsel for the parties at length, perused the pleadings, the evidence and the documents placed on record carefully.

The primary allegation appears to be that after the marriage in the year 2006, the parties were in jovial terms. However, in the year 2011, the Respondent/husband saw that the Appellant/wife was involved in a conversation with a man outside the marriage and when she was confronted, she admitted the guilt. The Appellant/wife, on the other hand, stated that false allegations have been levelled against her as she gave birth to two girls and in respect of the conversation outside the marriage with a third person other than the husband, she denied the same. She has further denied the fact that she has admitted and signed an apology letter (mafinaama) dated 07.03.2011. The evidence and the statement would show that though the document has stated that an apology letter was executed but the same is not on record and instead, the document (Ex.P-1) would show that a mobile was purchased with her own money and the tenor of document (Ex.P-1) would show that it was purchased for herself and it further states that she would never purchase any household goods without asking her husband or in-laws. The tenor of document (Ex.P-1) shows the state of mind of the husband that in a family, a wife is expected to behave like a hired chattel and even for household expenses, the permission of husband is required. Thus, the execution of the like nature of a document wherein, the husband says that the wife admitted her guilt only shows the proposition of guilt but its interpretation is completely misconceived and such activities of self determination of guilt by the husband would not dominate the track leading towards the cruelty. The Appellant/wife, however, admitted the contents except her signature. Therefore, even if the signatures are admitted to be existing, it cannot be stated that purchase of any household goods by the wife without the consent of the husband would be cruelty.

Other allegations have been made that an affidavit (Ex.P-2) has been executed by the Appellant/wife that she has done some illegal work but we do not find the contents of affidavit to include the nature of such illegal work therein. The Respondent/husband alleges that the Appellant/wife committed theft of household property of the landlord where they were residing and in respect of defence to document (Ex.P-2), the Appellant/wife states that she had never committed any theft of any ornaments or cash and perusal of the said document (Ex.P-2) further shows that an undertaking was obtained that she, in order to reform herself, would stay at her parental house with her children and further would not resort to any legal right against any of the family members. The Appellant/wife has denied the signature on the document (Ex.P-3), which is said to be a document of admission of theft.

On the contrary, the Appellant/wife has stated that when her first child was born disabled, the torture towards her was aggravated and different allegations were also attributed and she was forced to sign a stamp paper, which appears to be another document (Ex.P-2), the affidavit. Admittedly, there is no report of any criminal case about the theft and in absence of the said bald allegations by any third party or who suffered the theft, the statement of the Respondent/husband cannot be accepted as a sacrosanct statement.

In view of the decision of the Hon’ble Supreme Court in the matter of Neelam Kumar Vs. Dayarani reported in (2010) 13 SCC 298, we are of the view that the Respondent/ husband has failed to prove the ground of cruelty on the basis of pleadings and evidence and he has not discharged the burden properly for proving the said fact. Therefore, decree of divorce on the ground of cruelty appears to be unsustainable and the judgment and decree passed by the learned family Court deserve to be set aside.

It appears that presently the wife has no source of income and she is residing at her parental house. Considering the present market rates and inflation and to further avoid multiplicity of proceedings, we deem it apposite that Rs.15,000/- be granted as monthly maintenance to the Appellant/wife henceforth. Accordingly, the Respondent/husband shall pay an amount of Rs.15,000/- as monthly maintenance to the Appellant/wife. The deduction shall be made from source and shall be paid to the account of wife. The said maintenance amount is inclusive of all other maintenance granted to the appellant/wife, if any and the same shall be set off and adjusted. It is made clear that as and when salary is reciprocally increased, the amount of maintenance shall also be increased proportionally to the extent of increase of percentage in future salary, which the Appellant/wife would be entitled to receive.

In the result, the Appeal is allowed and the impugned judgment passed by the learned family Court is set aside.