Rathi vs Dhanyakumar

Rathnakala, J.—Though this matter is posted for admission, is taken up for final disposal.

This is a wife's appeal aggrieved by the judgment and decree dated 18.09.2014, passed in M.C. No. 21/2010 by the Additional Senior Civil Judge and JMFC, Sagara, whereby, the petition filed by her under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for brevity) is dismissed.

The case of the appellant/wife before the trial Court was:

"The parties belong to Hindu Jams community, married on 09.05.1993 as per their customs and they have two male issues from their marriage. Prior to the marriage, the husband/respondent was an agriculturist and had inherited family properties. For five years after the marriage, there was no problem in their marital life subsequently, husband/respondent started torturing the wife physically and mentally. Though both the family members advised him, he did not rectify himself and persisted his cruel acts on the wife. The wife did not disclose her predicament to anyone, with a fond hope that the husband may improve one or the other day. The husband suspected her fidelity, disowned his fatherhood to the children born out of their wedlock. He was an alcoholic even prior to the marriage but suppressed the said matter from the members of wife's family and married to her. He would assault her and also the children. Many a times, the wife with her children was compelled to take shelter at her neighbourers. To quench his alcoholic thirst, he sold out his family property which was the only source of income to the family. That apart, he has sold away the cattle and movables of the family also. The children born under the wedlock are prosecuting studies but the husband neglected to maintain them. She is residing separately with the children, and eking out livelihood by collie work. The husband approached her, in her private residence and threatened to murder her. In his inebriated condition he attempted to assault her with a club during May, 2008. Out of fear for her life she separated from him. It is not possible for her to continue the marital life with him otherwise the future of herself and children will be at a stake."

The husband contested the petition. Admitted the relationship and denied the allegations leveled against him in the petition. He further contended that the first son is working in a hotel and wife works as a cook in a Government School, Iduvani.

Enquiry was held. P.Ws. 1 to 3 were examined for the petitioner/wife and the rebuttal evidence was adduced by husband as R.W. 1. The Court below after giving audience to both, dismissed the petition for want of sufficient evidence in proof of the grounds urged in the petition.

Sri P.P. Hegde, learned Counsel for the appellant submits that the finding of the trial Court is perverse and not read in proper perspective. A stray sentence emerging in the evidence of P.W. 2 was given undue importance. The evidence of the wife, her father and son was sufficient to make out a case of cruelty against the husband. She is a victim of domestic violence. This fact is ignored by the Court below. The appeal may be allowed by setting aside the impugned judgment and decree of divorce may be granted by dissolving the marriage of the parties.

The husband though served is unrepresented.

In the light of the above, the sole point that arise for our consideration is:

"Whether the appellant/wife has made out a case of cruelty against her husband entitling her for a decree of divorce?"

The trial Court in the body of its judgment while appreciating the evidence, emphasized on the cross-examination evidence of the wife that from the date of the marriage, she wanted to lead a luxurious life and was insisting her husband to admit her children to a private school in the town. Her father P.W. 2 had admitted that he had advised his daughter not to stay in the village and shift to the town. He had also advised his son-in-law to do some business in Sagara town for which he was not agreeable. The wife during her cross-examination had admitted that she had persuaded her husband to sell the agricultural property. That influenced the mind of the Court to infer that the agricultural property was not sold because of the bad habit of the husband. Though there was admission from the husband that the wife need not have worked as maid for a living if he had not sold the property or if he had earned for the family. Though he had categorically admitted that she is living separately with the children since four years and he had not made any efforts to trace them, the Court below opines that this admission is insufficient to make out a ground for cruelty and dismissed it.

In our considered opinion, the Court misdirected itself in reading stray admission in isolation out of the other evidence on record much against the established tenets of Evidence Act. It is an admitted fact that the wife is residing with her children separately for three to four years prior to her adducing evidence before the Court and her husband never cared to approach her or the children. The evidence which became a Boomerang to the case of the wife in the eye of the Court below reads thus:

It is not clear to us whether the wife while standing in the Witness Box before answering the question, did really understand the meaning of word At the same time, she has clarified that she did not compel her husband to shift from the village but only insisted to purchase the land in some other place. Though she admits that she persuaded her husband to sell the land, does not admit that she has taken away the entire amount. Giving a literal interpretation of her evidence sounds that she wanted to lead a luxurious life, admitted her children to the school and wanted her husband to do business at Sagara town. But, there is no suggestion to the effect that because of her such ambition she coerced her husband and deserted him to lead a life of her own.

The father of the appellant/P.W. 2 admits that he had advised his daughter not to stay in the village but to shift to a town and had advised the son-in-law to do some business at Sagara which was not accepted by him. Except the suggestion denying the case of the wife, nothing more is achieved for the respondent during his evidence. The important of all is, the evidence of the Son born out of wedlock to the parties. As on the date of filing the affidavit, he was aged 19 years. Children are the best judges of what happens between the four corners of the house. It cannot be expected of a typical homemaker wife, to rush to the Court or Police Station on each and every untoward incidence in the family, complaining against the abusive behavior of the husband unless there is compelling situation. The son has fully supported the case of his mother and not even a single statement from his affidavit evidence could be shaken during his cross-examination.

During the course of his cross-examination, a suggestion was put to the respondent/husband that when the Presiding Officer of the Court called upon him to attend the Court for conciliation, he came to the Court in drunken condition and he was cautioned to initiate a case against him by the Court. It is a responsible suggestion made at the Bar connecting to an incidence that occurred in the Court hall. He admits that he did not pay even a portion of the sale proceeds of his property to his wife. He also admits that if he had not sold the property or if he was earning, there was no need for the wife to work. He expresses ignorance to the suggestion that if the wife intended to lead a luxurious life, she need not be working as a housemaid at puttur. He is not aware of the present status of his wife and children and fairly admits that he has not made efforts to trace them. That admission by itself is sufficient to drive an inference that he has neglected to maintain his wife and children. The admission given by the wife that she aspired to lead a luxurious life, even if were to be true version of her mind is not a sin. It was not the case of the husband that because of her aspiration to lead a luxurious life, she pestered and coerced him to move to the town. His solemn statement in his affidavit evidence is, at the instance of her family members she told him that it is difficult for her to live in the village and insisted to move to the city. Since he opposed to the said proposal, she is residing at Puttur with the children for the last two years. On his own showing she was working as a cook since she had no other source of income.

The petition is filed on the ground of cruelty and desertion. Relevant lines from Section 13 of the Act reads thus:

"Section 13 : Divorce - (1) Any marriage solemnized, whether before or after the commencement of this Act may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i).................Or,

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii)...........................

[Explanation.--In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]"

The statute though does not define what amounts to "cruelty" to make out a case for divorce, the desertion is well defined. It is not necessarily mere physical abandonment but also the voluntary act of willful negligence by the offending spouse of the aggrieved spouse and the like circumstances which the explanation clause itself denotes as ''grammatical variations and cognate expressions'' that fall within the ambit of desertion.

Despite the admitted fact that the parties were residing separately for two years prior to the petition because of the omission on the part of the husband, the Court below held that the grounds urged were not proved before the Court. We are at a loss to fathom, what more proof can a wife furnish to the Court when she is urging that the husband treated her cruelty, by his verbal abuses touching her integrity, disowning the children born out of wedlock and assaulted her physically within the four corners of the house. Husband himself admits that since he sold family property and was not earning, wife had to maintain the family by working as a cook.

The petitioner has placed sufficient material on record to show that the husband has willfully neglected to maintain the family for two years prior to the presentation of the petition and the husband is not successful in disproving her case by demonstrating his bonafides in withdrawing his company from the family. He has already done away with the family properties, the wife has brought up the children and they are prosecuting their studies promptly. Under this circumstance, we hold a case for desertion under section 13(1)(i-b) is made out.

As regards to the other matrimonial offences of "cruelty", the evidence of son of the parties/P.W. 3 is of utmost importance. He is the eyewitness to whatever occurred inside the four corners of the house. It is not shown that he is tutored by his mother or deposed falsely for any other reason. There cannot be anything worst for an innocent house wife than to bear with the allegation by the husband of extra-marital relationship. During her cross-examination, there was no specific suggestion that such averment in her affidavit evidence is baseless, except for a bald suggestion that she is not harassed physically and mentally. The respondent failed to shatter her examination-in-chief affidavit evidence. The appreciation of the evidence by the Court below is insensitive and unmindful of dimension of a matrimonial dispute.

The Supreme Court in the case of K. Srinivas Rao Vs. D.A. Deepa, (2013) 3 AD 458 : AIR 2013 SC 2176 : (2013) 1 DMC 458 : (2013) 3 JT 97 : (2013) 171 PLR 149 : (2013) 2 RCR(Civil) 232 : (2013) 2 SCALE 735 : (2013) 5 SCC 226 : (2013) AIRSCW 1396 : (2013) 2 Supreme 80 , held as under:

"10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term "cruelty". Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.

In Samar Ghosh this Court set out illustrative cases where inference of "mental cruelty" can be drawn. This list is obviously not exhaustive because each case presents it's own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh. We have reproduced only the instances which are relevant to the present case.

"101. 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) xxxxxxxxxxxx

(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) xxx xxx xxx

(viii) xxx xxx xxx

(ix) xxx xxx xxx

(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) xxx xxx xxx

(xii) xxx xxx xxx

(xiii) xxx xxx xxx

(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"

In the light of the above, we are of the considered opinion that the wife was driven to a compelling situation to withdraw her company of her husband since he neglected to maintain the family. She has not committed any sin by aspiring for a luxurious life and for educating her children in private school. The husband though in his written statement filed before the Court below has contested the petition has not made any effort to take the wife and his children to his marital fold and thereby to perform his marital obligation. The Court below has misdirected itself by importing its own perception which was not at all the case of the husband. The wife has successfully proved a case of cruelty against the husband and is entitled for a decree of divorce on that ground also.

Even after making out a case either under Section 13(1)(i-a) or 13(1)(i-b) of the Act of both provisions, a petition's case is yet to pass through sieve of Section 23 of the Act.

In the landmark judgment reported in Dr. N.G. Dastane Vs. Mrs. S. Dastane, AIR 1975 SC 1534 : (1975) 2 SCC 326 : (1975) 3 SCR 967 , the principles enunciated at paragraphs-54 and 55 read thus:

"54. Even though condonation is not pleaded as a defence by the respondent it is Court's duty, in view of the provisions of Section 23(1)(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the Court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if the Court is satisfied "but not otherwise", that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty.

Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration......"

From the material available on record, we do not find the wife being guilty of any omission and commission disentitling her for relief. The Trial Court's judgment is on a superficial understanding of the facts and circumstances of the case. Hence, liable to be dismissed.

Accordingly, the appeal is allowed.

The impugned judgment and decree dated 18.09.2014, passed in M.C. No. 21/2010 by the Additional Senior Civil Judge and JMFC, Sagara, is set aside.

The marriage solemnized between the parties is dissolved by granting a decree of divorce.

Registry to draw a Decree accordingly.

No order as to costs.