Laxmi Bai vs Ashok Jain

Heard.

This appeal is against the judgement and order dated 27/09/2016 passed by the Judge, Family Court, Rajnandgaon in a Civil Suit No.104-A/2011.

Instant appeal is by the wife. As per the pleading by the parties, the marriage in between the appellant and respondent took place in the month of October, 1999. It is not in dispute that the husband the respondent belong to Jain caste and the wife belong to Sonar caste. Out of the wedlock, three children were born. Before the marriage both the boy and girl were in the love relation. First marriage was before the Registrar (Marriage) and subsequently marriage was performed according to the Hindu rituals. The husband alleged that the wife was having the habit of intoxication of Gudakhu (a tobacco product) including drinking alcohol. The husband contended that he had a grocery shop and it was alleged that whenever any lady used to come to the shop the wife used to object to it with an allegation that husband has illicit relation with her. Subsequently, the husband went to Andhra Pradesh and the wife also joined with him. Subsequently, she came back to Rajnandgaon, at that point of time the husband when was admitted to the hospital, the wife came there and abused the mother and father. Thereafter, she went along with the husband to Andhra Pradesh but again came back. It was alleged that in the year 2006 without information or anything the wife used to leave the house for which report was made to the police and she used to abuse the children and assaulted them and used to behave in unnatural way. Husband further contended that the wife was subjected to treatment in mental hospital and without any rhyme or reason used to leave the matrimonial home.

In reply to the allegation, the wife denied the same and instead allegation were clamped on the husband that the wife was treated with cruelty and she was being assaulted and abused by the husband. She further contended that while she joined the company of the husband at Andhra Pradesh she was treated like a servant in the house without any respect and demand of Rs.50,000/- was made as a dowry. Since the demand was not fulfilled the husband and the mother-in-law used to beat the wife. She further stated that she was forced to leave the house because of the assault and beating. Consequently, she has not deserted the husband without any just cause.

Learned family court on the basis of pleadings of the parties framed the issue as to whether the wife has committed cruelty on the appellant after marriage and it was held in affirmative and accordingly decreed the suit by passing a decree of divorce.

On behalf of the husband, the husband himself was examined as PW-1, the uncle of the husband namely Namichand was examined as PW-2, the daughter namely Ekta was examined as PW-3. On behalf of the wife, wife herself was examined as DW-1 along with witness Janak Bai as DW-2, Ganga Bai as DW-3 and Kanak Bai as DW-4 were examined.

Learned counsel for the appellant/wife would submit that the cruelty has not been proved by the husband though he was plaintiff. He would submit that instead the finding would show that the wife was treated with cruelty as she was subjected to assault, therefore in different interval of time she was forced to leave the matrimonial house. He would submit that the trial court has held the cruelty on the part of the wife to the husband, therefore the finding is contradictory to each other and the judgement and decree of the trial court be set aside.

Per contra, learned counsel for the respondent/husband would submit that the character of the husband was assassinated by the wife and the charges were clamped that the husband had illicit relation with third women. Consequently, it would amount to cruelty and the judgement and the decree of the court below is well merited.

We have perused the record of the court below. The husband alleged that after the marriage when she became pregnant the child was born at Rajnandgaon and after she was discharged from the hospital, she instead of joining the company of husband went to her friends place with the child. He further stated that during such period, when he became ill, then he was admitted to the hospital, the wife came there and started quarreling with the parents of the husband. He has further contended that whenever any woman used to visit the shop the wife used to clamp charges of illicit relation with that lady, therefore being disgusted with such behaviour, he left for Andhra Pradesh, however in Andhra Pradesh too, the behaviour of the wife continued in the same fashion. He further submits that whenever any lady used to visit the shop the wife used to quarrel. He further stated that threat was extended that she will get a divorce, for which she left the house of her own and agreement was also executed.

One copy of agreement has been placed on record which is marked as Ex.P-1. Reading of it would show that two reciprocal promise was given, one by the wife and other by the husband. The document scribed by the wife purports that both the husband and wife do not repose confidence on each other, therefore it leads to quarrel and the wife do not want to stay where the husband want to keep her, therefore they need six months time and wanted to stay separate. If after six months, if they reconcile, she would join. Subsequent to it, they would be free to lead their life according to their choice. The averments have been made both by the wife and by the husband. This document has not been rebutted by the wife in her statement, therefore inference would be that the faith and belief on each other in between the husband and wife degraded to the extent that it was reduced to writing. When the communication and agreement of like nature are entered in between the husband and wife, it would show that both the parties were losing faith and belief on each other to continue their marital life. The marital life are beyond the agreement and it is always a state of mind. Therefore, when the agreement of like nature in between the husband and wife are entered, it shows that both have touched the red line and reciprocal belief on each other.

Statement  of  the  wife  would  show  that  during  marriage  no exchange of gift was made as per the understanding of the parties but after marriage she alleges that a demand of Rs.50,000/- was made by the in-laws and the husband. Circumstances shows that she is residing separately from 2012 and stated that she went there after 2 to 3 times to join the company of husband, however the husband fled away. She further stated that she has stopped going to the husband because of fact the husband had eloped with another lady. Further in the statement she averred that the husband has remarried with another lady and kept her in his house. She further stated at Balod he had a friendship with a muslim lady, she subsequently died. Specific name was stated that the lady Pramila was kept by husband.

The daughter namely Ekta was examined as PW-3, she was examined on 21/04/2016 while she was 16 years of age. She stated that her mother had left 8 to 10 years back. She further stated that the mother did not want to stay with the father or children, therefore she had left. The witness further stated that while they were together all of a sudden she used to become angry and used to shout and further misbehaved with the father and when any body wanted to stop, she used to shout. This statement is reconciled with the husband's statement and the report which was made to the police vide Ex.P-4. In such report by husband it is stated that the wife had lost her mental balance and she was being treated and frequent attacks were made on the husband. The report Ex.P-4 was made to the Mahila Thana at Rajnandgaon on 5/12/2008. One document Ex.P-3 is also placed which is copy of the prescription of the wife which is dated 3/01/2006 wherein in respect of the complaints, marking was made by doctor showing signs of tension, weeping spells, suspicious, abusive, anger, laughs to self, talks to self, shouting loudly, suspicious of spouse character, talks excessively, temper, tantrums and abuse of other drugs. This has not been rebutted by the wife or other witness in their statement. Therefore reading such document Ex.P-3 and Ex.P-4 alongwith the statement of the children, it appears that wife used to treat the husband with abusive language and her behaviour was unnatural.

On behalf of the wife, the witness Ganga Bai was examined as DW-3 who is neighbour. She has alleged that the wife was treated with cruelty for demand of dowry and she was beaten at times. Likewise, statement of one Smt. Janak Bai examined as DW-2 has made similar statement that the husband used to assault the wife. The allegation that she was addicted to intoxication of alcohol, gudagu etc. stray allegation of abuse and assault is also attributed to the husband. Statement of Kanak Bai examined as DW-4 is also in similar line and she stated that the wife was subjected to assault by the husband. Therefore reading of the statement of the witnesses along with the statement of husband and wife would show that each of them have clamped allegation of assault on each other, which would show that both the parties have no respect for each other and on the alternate the wife has gone to the extent to assassinate the character of the husband and named the ladies clamping charges of illicit relations.

The Supreme Court in the case of (2016) 9 SCC 455 in between Narendra Vs. K. Meena has reiterated the law laid down in case of Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate reported in (2003) 6 SCC 334 and observed that accusation of character assassination would constitute a mental cruelty to sustain a claim for divorce. The Supreme Court in the judgement para 17 has laid down as under:-

“17.This Court, in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003 (6) SCC 334 has held as under: (SCC p. 239, para 7)

“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 extra-marital 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.”

Reading of the evidence in entirety would lead to show that apart from the character assassination and levelling charges of assault on each other, both the parties are living separately since 2012. There is nothing on record to draw inference that any effort was made by either of the parties to reconcile, therefore the nature of allegation as levelled on each other would lead to show that apart from the allegation of cruelty on each other and the evidence shows that the husband is living separately. The circumstances shows the level of allegation made on each other has wrecked beyond the hope of salvage leading to irretrievable break down of the marriage. Considering the over all aspect and the nature of evidence in this case, we are of the opinion that no interference in the decree of divorce is required by this court.

Consequently, the appeal fails. However, in respect of the permanent alimony which has been awarded to the extent of Rs.3 lakhs for future all time purpose, we deem it proper to increase the alimony from Rs.3 lakhs to Rs.6 lakhs and amount of Rs.6 lakhs towards permanent alimony would be payable to the wife within a further period of two months from today.

With the aforesaid observation, the appeal stands disposed of.