Mohanlal Agrawal vs Sunita Agrawal

Goutam Bhaduri, J

Heard.

The present appeal is against the judgment and decree dated 10/01/2019 passed in HMA No.579/15 by the First Additional Principal Judge,  Family Court, Raipur, whereby the petition filed by the husband/appellant seeking divorce on the ground of cruelty was dismissed. Hence this appeal by the husband.

(i) As per the averments of the husband, he was married to Sunita Agrawal on 07/05/2006 and out of their wedlock a child was born in July, 2008. At the time of marriage, he was posted at Bhuwneshwar as a doctor and he was working in a hospital at Bhuwneshwar. The wife joined the company of the husband in June, 2006 during the posting at Bhuwneshwar. It is pleaded that thereafter, gradually he realized that his wife is a short tempered; used to doubt the husband; quarrelsome in nature; and do not accommodate with the situation. Also after marriage she started behaving in cruel manner with the husband. The husband further averred that the wife used to get up late and failed to discharge her matrimonial obligations. After two months of the marriage, she extended threat to commit suicide and stated that she would inculpate the husband and the other family members of husband in some criminal case. The husband further stated that in a state of anger, she used to lose control on herself and also used to hurt herself and others. Consequently, the husband was not able to discharge his job properly. He further stated that without informing anyone she used to leave the house and used to sit outside the house for hours. A situation like this used to occur 2-4 times in a month. Due to such activity of wife neighbours used to congregate, due to which the husband felt humiliated and ashamed. In the month of November, 2006 the brother of the respondent came to Bhuwneshwar and took her with him.

(ii) The appellant/husband further averred that thereafter a meeting was convened in between the family members of husband & wife, wherein it was agreed that the wife will not quarrel over trivial issues and will not make the atmosphere of the house quarrelsome. Thereafter, the wife joined back the company of the husband at Bhuwneshwar and subsequently she became pregnant. According to him, on trivial issues she was trying to abort her pregnancy by hitting herself on stomach by hand and fist and extended threat to husband and other family members that she would kill the child. Thereafter, the husband started living in Raipur from February, 2008 during that time he separated from his joint family and started residing with his wife at Heerapur. The child was born on 23/07/2008 at Balangir but the husband and the family members were not informed about the same. Therefore, on above mentioned grounds the decree for divorce was sought for.

Per contra, the wife in her statement denied the averments made by the husband and instead stated that she was subjected to torture for demand of dowry of Rs.10,00,000/- (Ten Lakhs). Having not fulfilled the said demand, she was subjected to frequent torture and physical abuse. The wife further pleaded that the husband used to cause mental torture, whereby the relation in between them became tensed. During such period, she conceived but since the proper care was not taken by the husband, she had to go to her parental home at Odisha. It is also submitted that aggrived by the misbehaviour of the husband she made a complaint to the Odisha State Commission for Women wherein the husband appeared after notice and asked for signature of wife on certain agreement. All the adverse averments made by the husband further were denied by the wife.

Learned Family Court after hearing the parties and on the basis of the pleadings primarily framed relevant two issues out of which one was on the cruelty and the another was as to whether the wife has deserted the husband prior to two years from 28-10-2015. Finding in respect of both the issues were held in negative which resulted into dismissal of the divorce petition filed by the husband. Being aggrieved by such dismissal the present appeal.

Dr. N.K. Shukla, learned senior counsel, assisted by Ms. Priya Mishra and Shri Mayank Moolchandani, Advocates, appearing for the appellant/husband would submit that the nature of evidence of cruelty would show the unnatural behaviour of the wife, which humiliated the husband who is a Doctor by profession and the nature of incident would also show that normal human being cannot stay with a peace of mind in such circumstances with the respondent/wife, which itself amounts to cruelty. He would further submit that it is no one’s case that she was driven out from the matrimonial home instead the notice which was exchanged between the parties would show that the appellant/husband wanted the wife to rejoin. Referring to the statements of witnesses and the defence of the wife, learned counsel would submit that the statement of the wife would show the state of affairs and false allegations were made to the different authorities, which itself tarnished the image of the husband, and, as such, the same alone would constitute a cruelty. He would also submit that the wife has left the matrimonial home on her own.

(i) Per contra, Shri Sumesh Bajaj, learned counsel assisted by Shri Rishabh Bajaj, appearing for the respondent/wife would submit that the wife was subjected to cruelty for demand of dowry. He would further submit that though the allegations of threat of suicide have been made, but as per the pleading those statements were made to the sister of the husband, but she was not examined. According to the learned counsel, in respect of allegation that the wife used to sit outside the house for hours and neighbour used to congregate, but no neighbour has been examined. Learned counsel would submit that the allegation that the wife used to hurt herself but no evidence in that regard is on record. It is admitted that some cruelty was committed but when the husband rejoined the company and wanted to take back the wife would amount to condone the cruelty. He would next submit that because of the cruelty meted out, the wife had to leave the matrimonial home but when she wanted to go back certain terms were set out and both the couple stayed together for one and half year that would be a too short period to assess the cruelty. He would further submit that there was an allegation of extending threat to inculpate in some case was before the mother of the husband, but she was also not examined. In such constrained circumstances, she had to live at parental home at Odisha and to make a report to the State Women Commission. When the husband wanted to take her back, he was alarmed that he should behave properly, therefore, despite the allegations of husband the cruelty was condoned.

(ii) In respect of Vijay Kumar Agrawal (PW-2) & Radheshyam Chauraisya (PW-3) he would submit that both are hearsay witnesses and not the witnesses to the cruelty. As per the statement of wife, the cause of dispute is demand of dowry which her family members failed to fulfill. He would further submit that the statement would further show that the wife was deliberately overburdened during pregnancy period therefore she left the company of husband. It is stated when the husband was compelled to take back he wanted to get her signature on certain documents and it was refused by wife. It is stated that Mungilal Jain (DW-2) also stated about demand of dowry and deposed that even in the social meeting conciliation proceedings took place wherein also a demand of Rs.10.00 lacs was made. To buttress his contention, learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of Smt. Lalita James and others Vs. Ajit Kumar and other {AIR 1991 Madhya Pradesh 15}, Tomaso Bruno and another Vs. State of Uttar Pradesh {(2015) 7 SCC 178}, and J. Yashoda Vs. K. Shobha Rani {(2007) 5 SCC 730} and would submit that the sister, mother and the neighbours of the husband were not examined as such the burden of proof was on the husband to prove the cruelty, but the same has not been discharged. Referring to the judgment of the Supreme Court in the matter of Manisha Tyagi Vs. Deepak Kumar {AIR 2010 SC 1042}, learned counsel would submit that the nature of allegation would show that it was a normal wear and tear of the matrimonial life and therefore, the decree of divorce was rightly rejected by the learned Family Court. He prays for dismissal of the present appeal.

We have heard learned counsel for the parties at length and perused the documents and the evidence.

In order to find out the cruelty apart from a physical cruelty, mental cruelty has been defined by the Supreme Court in the case of Samar Ghosh v Jaya Ghosh (2007) 4 SCC 511 which are reproduced herein below:-

No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

The husband, as per the averments and the allegations, stated that the wife failed to discharge her matrimonial obligations and most of the time was spent in conversation on phone with her parents, when he tried to advise, she directly extended threat to commit suicide, whereby he used to be under the mental pressure. In a natural consequence, talking with the parents is not a cruelty to spouse at all, but if certain suggestions are given and in turn reciprocated with a threat to commit suicide to the husband, certainly it will cause a mental pressure and disturbance to the husband. Husband further stated that after two months of his marriage, the wife told his sister that she would commit suicide or would hurt herself or would inculpate the entire family in a false case and in state of anger, she used to throw the household goods and did not hesitate to hurt herself as also to the third party. Therefore, under those circumstances, the husband could not perform his duties well as a doctor in hospital.

It has been submitted by the wife that the disclosure which was made by the sister of the husband, the sister was not examined, therefore, the primary evidence was not brought. But in the cross-examination, it would show that after 2-3 months of the marriage, the husband narrates that when his sister called her to advice her understand facts of family, she extended threat on phone itself and stated that do not try to advise her and she would send the entire family to jail. No suggestion has been given that the husband has not heard the same. It is a normal incident that when wife talks on phone, the husband may hear it and in the matrimonial cases of the like nature, the evidence and proof are not akin to that of a civil suit and the circumstances; principle of preponderance of probability coupled with the behaviour of the spouse would be a relevant factor.

The husband further stated that on a trivial issues the wife used to leave the home and after hours she could be found and at times she used to come back herself, thereby caused a severe mental trauma to the husband. The statement of the husband would further show that he stayed with wife at Bhuwneshwar around quarter to two years and during her stay, she used to torture the husband mentally and physically like she tried to hurt herself. She used to extend threat to commit suicide and used to stay outside the home for hours or at times used to lock herself in the room, whereby the husband used to come under mental tension that what she will do inside the room due to which he was not able to discharge his duties properly and entire concentration of him was fixed to his home. The fact that the wife used to stay outside the house for hours and when she was requested to come in, she used to bang her head on the wall, whereby the neighbours used to congregate which also defamed the husband. This statement of the husband remains unrebutted in the cross-examination. When the wife used to sit outside the house for hours, it is not a natural conduct and cannot be said that it do not cause any mental trauma to the husband. Further the fact that she used to bang her head on the wall, whereby the neighbours used to congregate it also tarnishes the image of the husband and naturally would be humiliating before the neighbours. The husband further stated that thereafter he was not able to go to his duties appears to be justified. This evidence also remains unrebutted.

The husband further stated that during the course of pregnancy, her behavior became aggravated day by day and she tried to commit suicide by cutting her artery or neck and used to lock herself inside the room for hours, whereby it caused severe mental cruelty to the husband. There is no cross-examination of the husband on this issue also.

The evidence further shows that in such state of condition he informed the parents of the wife. In November, 2006 she accompanied with her brother and went along with him, thereafter, the meeting was convened in between the family members and it was decided that she will not further make any quarrel to disturb the tranquility of the house. Subsequently, the wife joined back and went to Bhuwneshwar and thereafter she became pregnant. Narrating an incident the husband stated that in March, 2008 he went to market with his friends, he came back little late and having come back to the house little late, the wife became agitated and started quarreling and in top of her voice stated that she would kill her child and started beating her womb, climbed on the table and tried to jump from the table and when the husband tried to console, she slapped him, however, the husband controlled the situation, this statement also remains unrebutted.

The husband further stated that this behaviour of the wife was disclosed to her parents, wherein they stated that their daughter is of that nature, she loses her temper but try to console and the time rolled by the behavior did not improve and immediately in 2017 when they shifted from Bhuwneshwar to Raipur, the husband stated that he shifted to Raipur for the reason that the wife could be kept in a joint family and by living in joint family her behaviour would be improved. But despite that the behaviour of the wife did not improve. At last on 17/04/2008 the father of the respondent/wife came Raipur and took her back and on 13/07/2008 a child was born the same was not informed to the husband.

The husband further stated that when he went along with the family members to see the child, they were not allowed and misbehaviour was meted out to them, this fact also remains unrebutted in the cross-examination. Cross-examination would further show that she made a report to the Orrissa Woman Commission against the husband. The husband further stated that when he went to see his child, he was asked not to come back again and she would hurt the child and herself and the misbehaviour was also meted out by the family members.

There are certain allegations made by the husband remained unrebutted. There is no cross-examination. The Supreme Court in the matter of Vinod Kumar Vs. State of Haryana reported in (2015) 3 SCC 138 has held that when there is no cross-examination on a factual matrix and that remained unchallenged that ought to be believed by the court

The wife in her statement on the contrary leveled allegation that she was subjected to cruelty for demand of dowry. Ex. P/1 is the report made to the Odisha Women Commission, Bhuwneshwar. The notice served to the husband on 02/09/2010 vide Ex.P/2 and the husband was asked to take back her wife. As against this, the husband in the cross-examination stated that he went to bring back his wife, but she refused to come. The suggestion given to the husband in the cross-examination that after four years when the husband went back to bring her back, he tried to get a signature on a document that she is mentally not normal and will behave properly, would show that the husband went to bring back his wife but in respect of the allegation the husband only stated that the wife should behave properly.

One Vijay Kumar Agrawal, brother of the appellant/husband, who was examined as (PW-2), corroborated certain facts and stated that he had heard it from his brother as also he has seen the incidents. He further stated that when he went to the house of the appellant, he felt that the wife/respondent was of argumentative in nature and used to extend threat to send the entire family to jail. He stated that when he used to talk with his brother, his brother used to disclose that he was fed up with his wife and therefore was not able to discharge his job properly. Radheshyam Chauraisya (PW-3), who was frequent visitor of the house of the appellant/husband also corroborated the statement of the husband and stated that he tried to advise the respondent but it was all in vain and when the advise was given in turn she used to extend threat for committing suicide. He further stated that she was admitted for studies in the dental college, Bhuwneshwar, but she did not continue. Corroborating further incident that once he visited the house of the appellant, the respondent was not available and having enquired when they called on the phone, she did not pick up the same.

The statement of the respondent/wife Sunita Agrawal as against this, the allegations of demand of dowry was made to the extent of Rs.10,00,000/- (Ten Lakhs) as alleged. When the complaint Ex. P/1 made before the Women Commission was confronted to her, she admitted that such demand of dowry of Rs.10.00 Lakhs was not mentioned. Certain discrepancies on the statement of the wife as against pleading was pointed out wherein she explained that she had signed the written statement in a state of hurry. Admittedly, there is no police report about such demand of dowry. When the notice Ex. P/2 which was served on behalf of the wife was confronted that she has alleged that she was being physically and mentally tortured, in reply to the same it was stated that it was written by mistake. Mungilal Jain (DW-2), the father of the wife, also stated that allegations of demand of dowry has been alleged of Rs.10.00 Lacs.

The Supreme Court in the matter of Raj Talreja v Kavita Talreja AIR 2017 SC 2138 the legal position as to when a false complaint would amount to cruelty was also examined, as below :

“10. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act, 1955 (for short the Act). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self-inflicted by the wife. Thereafter, proceedings were launched against the wife under section 182 IPC”.

Further in a recent decision of Joydeep Majumdar v Bharti Jaiswal Majumdar (2021) 3 SCC 742, a similar issue was dealt with by the Supreme Court where the wife had marred the reputation of the husband by defamatory complaints to husband’s superiors in army, which led to a Court of inquiry held by the Army authorities against the husband. His reputation was damaged and career progress suffered. The Supreme Court held “when the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.”

Allegations have been made that the wife used to throw the household goods and break them followed by the fact that she used to sit outside the house for hours; used to go out for hours outside the house; and at times used to bang her head on the wall, whereby the neighbours used to congregate; she used to lock her inside the room and making report to the women cell, levelling allegations of physical and mental cruelty whereby the husband was summoned by issuance of notice and lastly the allegations of demand of dowry and to inculpate the family in the false case naturally would cause mental trauma to the husband.

Therefore, applying the aforesaid analogy, the evidence led by the husband appears to be more logical and acceptable, in the opinion of the Court the same would cause mental cruelty to the husband. Accordingly, we are of the view that the husband would be entitled for decree of divorce.

In view of the above discussion, we are of the view that finding of the learned Family Court requires interference. Accordingly, the appeal is allowed. The impugned judgment and decree dated 10/01/2019 is set aside. The marriage solemnised between the parties on 07/05/2006 is dissolved by decree of divorce.

Now coming to the grant of alimony to the appellant-wife. The concept of maintenance grant is to ensure that the wife and the children of the husband are not left in a state of destitution after the divorce. The Supreme Court has consistently held that in order to ameliorate the financial position of a woman who had left her matrimonial home; grant of maintenance is a means to secure the woman's sustenance, along with that of the children, if any. The statutory provision entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and he cannot escape from his moral and familial responsibilities even after divorce. In the instant case, since no alimony has been fixed by the learned family Court and the perusal of the record would show that the wife is not working at present and she has no source of income and taking into consideration the fact that one child was born out of the wedlock, and in such circumstances to avoid the multiplicity of proceedings, we are inclined to hold that the wife is entitled to get Rs.30,000/- per month from the appellant towards maintenance which would be deducted at source from the salary of the appellant. It is made clear that as and when the salary/income is reciprocally increased, subsequently the amount of maintenance shall also be increased proportionally to the extent of increase in future salary.

In the result, the appeal is allowed, leaving the parties to bear their own cost.

A decree be drawn accordingly.