Surat Bai vs Ashwani Kumar

The present appeal has been filed by the appellant wife against the judgment and decree dated 05.03.2012 passed by the learned Additional District Judge, Sarangarh, District Raigarh in Civil Appeal (Civil Suit) No.12-A/2009, whereby the application filed by the respondent husband for grant of decree has been allowed.

Brief facts of the case are that the respondent filed an application under Section 13 of the Hindu Marriage Act, 1955 before the learned Additional District Judge, Saragnarh on the ground that the marriage of the appellant wife and respondent was solemnized in the year 1997 according to Hindu rites and rituals at Village Hirri. After sometime of the marriage, the behaviour of the appellant wife was not good with the respondent husband and his family members and the appellant was habitual to go to her paternal house and she wanted to live there. The respondent husband is a disabled person so the appellant wife did not like him and she failed to perform marital life with the respondent as well. It was alos alleged that the appellant wife is having illicit relation with one Firatram and she is residing in her parental house since September 2009.

The appellant wife denied all allegations in her written statement and stated that she has not deserted her husband. The respondent husband started committing cruelty with her after born of daughter and he avoided the treatment of the appellant wife. The respondent husband and his family members physically and mentally tortured the appellant by saying that the appellant has delivered a daughter and due to physical and mental torture of husband and family members, the health of the appellant wife was always sick. She was always ready to live with the respondent husband and she never deserted her husband.

The learned Trial Court after appreciating the oral and documentary evidence available on record allowed the application of the respondent husband and granted decree of divorce in favour of the respondent. Hence this appeal has been filed by the appellant wife.

Learned counsel for the appellant submits that the judgment and decree dated 05.03.2012 passed by the learned Family Court is perverse, illegal and bad in law, therefore, the same is liable to be set aside. The Family Court has gravely erred in passing the impugned judgment and decree in favour of the respondent despite there being no ingredients of Section 13 of the Hindu Marriage Act. The Family Court has failed to appreciate that the appellant has raised her willingness and readiness to live with the respondent at her matrimonial house and she never desserted the respondent. This is an admitted fact that the appellant was living at her parental house since the year 2009 and the application for divorce was filed on 29.09.2009 itself, therefore, the decree of divorce could not have been granted in these circumstances. The learned Family Court committed grave error of law by holding that the appellant has left her matrimonial house without there being any cogent or reliable material witnesses to that aspect. The finding recorded by the learned Family Court is perverse, erroneous, illegal and deserves to be set aside. It is clear from the evidence that the respondent did not take care of the appellant and his daughter therefore the appellant wife was compelled to go to her parental house only for the daughter’s treatment, as such the judgment and decree passed by the learned Family Court is liable to be set aside. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Gurbux Singh vs Harminder Kaur, reported in 2010 SAR (Civil) 921.

Learned counsel for the respondent supports the impugned order and submits that the learned Family Court has rightly appreciated the oral and documentary evidence available on record and passed the decree of divorce in favour of the respondent husband except the finding with regard to Issue No.2 and the respondent has proved his case before the learned Family Court. The respondent husband has challenged the finding recorded by the Family Court in Issue No.2 by way of cross appeal. He further submits that by oral and documentary evidence, the respondent has proved that the appellant wife is having illicit relation with another man but the learned Family Court gave finding which was against the oral and documentary evidence so this finding is not sustainable and the appeal is liable to be admitted on this point and divorce be also granted on the allegation of adultery. Reliance has been placed on the judgments rendered by this Court in FAM No.124/2017 vide judgment dated 27.04.2022, parties being Shailendra Kumar Chandra vs. Smt. Bharti Chandra and FAM No.176/2018, judgment dated 20.10.2022, parties being Uday Kumar Sharma vs Smt. Priya Sharma.

Heard learned counsel for the parties and perused the material available on record.

The learned Family Court framed 5 issues, which are as under:-

The learned Family Court after appreciating the oral and documentary evidence available on record found that the respondent husband did not prove the issue No.2 but he has been able to prove Issue Nos.1, 3 & 4, as such passed the decree of divorce in favour of him. Before the Family Court, the respondent filed various documents from Ex-P/1 to P/8. Ex-P/1 is compromise statement but the learned Family Court did not appreciate this document. Ex-P/2 is an application filed by the appellant wife before the SDM, Sarangarh in which she demanded her children from the respondent. The appellant admitted in para 14 of her cross examination that “यह बात सही है कि मैं जहर खाई थी और मुझे मेरे ससुराल वाले इलाज करवाये थे। “In para 17, she admitted that” यह कहना गलत है कि इस कोठार के कमरे में फिरत के साथ मुझे रंगे हाथ पकड़ा गया है। मैं यह नही बता सकती कि इस संबध में गाव में पंचायत भी हुआ है। यह भी मैं नही बता सकती कि उस पंचायत में पुछताछ करने पर मेरा गलती पाया गया है। यह कहना गलत है कि इस घटना के बाद मेरे ससुराल वाले क्षुब्ध हुए और मैं इस परिस्थिति में अपने मायके चली आई तब से नहीं गई हूं। साक्षी स्वयं से कहती है कि मेरे पति नहीं रखूगा कहकर पहुॅचा दिये। यह बात सही है कि उसके बाद तलाक आवेदन की नोटिस मुझे न्यायालय से प्राप्त हुआ।“

The Family Court after appreciating the oral and documentary evidence available reached to the conclusion that the appellant is living separately since 2009 without any cogent reason and she never tried to return to her matrimonial house. The respondent husband tried to keep her with him and even he filed an application before the SDM in this regard. The appellant herself admitted in para 19 that “यह बात भी सही है कि मेरे पति द्वारा मुझे अपने पास रखने के लिये एस0 डी0 एम0 के यहाॅ सर्च वारंट भी कटवाया था।”

This Court in the matter of Uday Kumar Sharma (supra) held in paras 10 & 19 as under:-

“10. The Supreme Court in V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337 held that mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

It is important to say that the cruelty is a question of fact and not law. In matrimonial disputes between husband and wife (with or without their in-laws), behaviour, act and nature, etc. with regard to cruelty depend upon the facts and circumstances of each case. It is very surprising to note that Family Court has not discussed the fact about cruelty inflicted by such conduct of wife. The finding of the Family Court has simply recorded that the husband has not produced reasonable and sufficient evidence regarding physical and mental cruelty by wife to husband, and Family Court was not even bothered to analyze the statement of husband and his witnesses which is not rebutted by the wife.”

Further this Court in the matter of Shailendra Kumar Chandra (supra) held in paras 20 & 21 as under:-

Hon’ble Supreme Court in the matter of Vishwanath Agrawal versus Sarla Vishwanath Agrawal [(2012) 7 SCC 288] has held that “The expression ‘cruelty’ has an inseparable nexus with human conduct or human behaviour. It is always dependent upon social strata or the milieu to which the parties belong, their ways of life, relationship, temperament and emotions that conditioned by their social status. The facts and circumstances are to assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of others.

In the case of Narendra (supra), the respondent-wife wanted the appellant-husband to get separated from his family. The evidence of that case shows that the family was virtually maintained from the income of the appellant-husband. In that circumstances, Hon'ble Supreme Court has observed that :-

“..... It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.

......... As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the respondent wife to constrain the appellant to be separated from the family would be tortuous for the husband and in our opinion, the trial court was right when it came to the conclusion that this constitutes an act of “cruelty”.”

In the case in hand, the learned Family Court did not specifically frame issue regarding commission of cruelty but Issue Nos.1, 2 & 3 clearly shows the main disputed issues between the parties. The learned Family Court appreciated all the issues and recorded a finding that the appellant does not want to live with her husband. So far as the Issue No.2 is concerned, the same could not be proved by the respondent husband. The learned Family Court found in paras 16 & 17 of the judgment that PW-3 Bhagwandas stated in his examination-in-chief that the appellant and Firatram had confessed their relationship before panchayat, but in his cross-examination, he stated that when panchayat was arranged, the appellant was not present, as such there are contradictions in the statements of this witness, as such the adultery has not been proved by the respondent husband against the appellant wife. Accordingly, the Issue No.2 has rightly been answered.

In view of the foregoing discussions, this Court is of the considered view that the finding recorded by the Family court is based on proper appreciation of oral and documentary evidence available on record, which is neither perverse nor contrary to the record and does not call for any interference by this Court.

The appeal being devoid of any substance deserves to be and is hereby dismissed. The cross appeal filed by the respondent husband challenging the Issue No.2 is also dismissed.

As per the order dated 19.11.2012, interim maintenance of Rs.6,00/-was awarded by this Court in favour of the wife. The respondent husband has filed salary certificate and some other documents pertaining to his agricultural land, as such it would be just and expedient in the interest of justice to award maintenance in favour of the appellant wife. It is accordingly ordered that the respondent husband shall pay a sum of Rs.2,000/- per month as maintenance to the appellant wife.