1. The husband has filed this appeal against the judgment and decree dated 2-6-1987 passed in Title (Divorce) Suit No. 1 of 1986 by 5th Additional District Judge, Dhanbad dismissing his application under S. 13 of the Hindu Marriage Act (hereinafter referred to as the Act) for dissolution of marriage by a decree of divorce.
2. The appellant filed the aforesaid application for divorce on the ground of misrepresentation on the point of age as well as educational qualification, desertion and cruelty both physical and mental.
3. The appellant's case as presented in the court below was that he was married with the respondent Tripti Mukherjee in July, 1980 at Shaluk Chapra, P.S Nirsa, District Dhanbad according to Hindu rites and customs. It was a negotiated marriage. At the time of negotiation of marriage, the girl side made misrepresentation regarding the age and educational qualification of the girl and it was represented that she was aged about 20 years and she had read up to Matriculation. After marriage it was found that she was aged about 30 years and she had read up to 2nd class only. She was also found rough and rude in her behaviour. After marriage on the very first night the respondent insisted upon him for separation from the joint family and also stated that her two younger brothers should also be brought at her Sasural and to be admitted in the local school. The husband did not agree to the above unjustified and whimsical demand of the respondent as he was getting a salary of Rs. 200/- per month only. The aforesaid happening at the firs night created bad feelings between them.
4. Further case of the appellant is that the respondent misbehaved with his brothers and parents and was against providing them with minimum maintenance. She assaulted the appellant (husband) and also kicked the old father several times. The aforesaid cruel acts of the respondent affected the mental peace and happiness of the family. It is further alleged that the respondent continued with the acts of cruelty both physical and mental on the appellant and his family members. It is further stated that the respondent lived with him (appellant) for about 3 and 4 months in broken spells and was living with her father for the last one and half years. There was no consummation between them and there was no issue out of their wedlock. The cause of action arose on 5-5-1984 when the respondent left him.
5. The defendant-respondent contested the suit by filing a written statement. In her written statement she denied all the allegations made against her in the application. Her case is that she at the time of marriage was not aged about 30 years and no misrepresentation was made by her parents at the time of marriage. Prior to the marriage the applicant (husband), his parents and other relations visited her house and made enquiries from different sources and thereafter they agreed to marry with the respondent. It was also stated that no misrepresentation was made even with regard to her educational qualification and it was stated that she has a basic education. She never insisted upon the appellant to live separate from his family members nor she insisted for bringing her two brothers at the sasural for the purpose of giving education to them. Her younger brothers are reading in a school of the village and the school of the village Salukchapra is one of the best schools in that area and there was no occasion for her to insist the appellant to bring her younger brothers to her sasural. There was no any reason or occasion for any ill-feeling from her side and the real reason for the ill-feeling was that the appellant on several occasions asked her to bring Rs. 10,000/- from her parents' place so that he could purchase a motor cycle but she did not agree as a result of which the husband began to ill-treat and torture her in different ways. The other family members also without any rhyme and reason picked up quarrel with her and also assaulted her without any fault on her part.
6. She denied the allegation that she misbehaved with the brothers and old parents of the husband. She also denied the allegation that she ever assaulted either brothers, father or the respondent and stated that the story with regard to assault was an absurd story as she could not think of even pointing out the finger towards her father-in-law, not to speak of kicking him as falsely alleged by her husband.
7. Further case of the respondent is that within the last five years she had lived with her husband most the time at his house and has performed all the duties of a faithful Hindu wife to the best of her ability. After marriage she stayed at sasural one year continuously and thereafter the applicant took her to her father's place and left her there and thereafter he did not go there to take her back and then her father and uncle took her to her sasural, there the applicant and his family members did not show respect and hospitality to her father and uncle which was expected from them. Thereafter she started living at her sasural and there she was ill-treated and tortured in various ways.
8. In the month of July, 1985 the husband brought her to Nirsa Bazar on the pretext of marketing but she was left there alone by the appellant and when she became nervous and was searching for her husband she was informed by her co-villager that her husband had left the place. Thereafter she managed to come to her father's place by the hired car of one Trilochan Chakroborty and since then she is living at her father's place and the husband did not come there to bring her back and even he did not talk with her father when he went to meet him. The husband has also retained all the ornaments which were given to her by her father at the time of her marriage. The husband has deserted her willfully and she has come to know that he is preparing a plan to marry with another girl with the hope of getting huge amount of dowry to be spent on the marriage of his unmarried sister.
9. During the pendency of the case, the trial court made efforts for reconciliation between the parties. The respondent told that she was ready to go to her husband's place but the husband did not agree to the said proposal and as such the reconciliation failed. Thereafter both the parties adduced evidence and the trial court after considering the evidence on the record dismissed the application for dissolution of marriage by a decree of divorce after holding that (a) there was no misrepresentation on the point of age and educational qualification (b) the applicant has failed to prove the desertion from the said of the wife and (c) the plea of cruelty has not been proved and the case was filed by the applicant as his demand of Rs. 10,000/- for purchase of motor-cycle was not met by the parents of the girl.
10. While disposing of the case the trial court also ordered for payment of Rs. 300/- as monthly alimony during the pendency of the suit and Rs. 700/- towards expenses for contest of the suit to the respondent with a direction that the amount of expenses and arrears of alimony should be paid within a month failing which the respondent would be entitled to recover the amount by executing a decree.
11. The learned counsel appearing on behalf of the appellant contended that the court below has approached the case from wrong point of view and has not considered the evidence in true perspective as a result of which the judgment is vitiated in law. He did not challenge the finding of the court below on the point of misrepresentation regarding age and educational qualification, he submitted that the finding of the court below that there was no desertion from the side of the wife as well as no cruelty from her side is against the evidence on the record.
12. The appellant has examined two witnesses namely A.W 1 (himself) and A.W 2 Anadi Shanker Mukherjee, his father. The respondent has examined four witnesses namely O.W 1 (Trilochan Chakraborty) driver of the car which was hired by the respondent, O.W 2 (herself), O.W 3 Sachidanand Banerjee (father of the respondent) and O.W 4 Prafulla Paul. Besides the aforesaid oral evidence two documents were also filed on behalf of the respondent. Ext. A is the letter written by the father of the appellant to Hari Mohan Banerjee prior to the marriage informing him that he has varified the janmapatri of the bride and the same tallied with the janmapatri of his son and he is ready to marry his son with the respondent. Ext. B is the school leaving certificate of the respondent showing her date of birth.
13. Only two questions are to be decided in this appeal namely whether there was desertion by the wife and that the wife treated the husband with cruelty. S. 23 of the Act provides, inter alia, that the court after being satisfied that the ground of relief exists may grant relief to the parties provided none of the bars as provided under the said Section are attracted in the case. The applicant seeking relief has to establish the facts alleged in the petition for grant of relief. No doubt, applicant has to prove the case on the preponderance of probability as required in civil cases and not on reasonable doubt as required in criminal cases.
14. The desertion was not a ground of divorce prior to the amendment of S. 13 by the Marriage Laws (Amendment) Act, 68 of 1976. According to the amended S. 13(1)(ib) the parties to the marriage can get a decree of divorce on the ground that either party to the marriage has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The desertion has been defined in the explanation to S. 13 of the Act according to which desertion with all the its grammatical variations and cognate expression 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 wilful neglect of the petitioner by the other party of the marriage. According to the aforesaid definition the essence of desertion is permanent forsaking or abandonment of the one spouse by the other without reasonable cause and without consent or against wish. The desertion is a matter of inference which is to be drawn from the fact of each case. It is neither permissible nor possible to say with definiteness as to what act or conduct would amount to desertion. Particular act or conduct may amount to desertion in one case but not in the other case. Before a person can obtain a decree of divorce on the ground of desertion two essential factors are to be proved from the side of the deserting party namely (a) factum of separation and (b) animus deserendi — intention to bring cohabitation to an end. He has also to prove two other elements from his side (deserted spouse) namely, that there was no consent from his side and his conduct was not such which gave reasonable cause to the deserting spouse to leave the matrimonial house to form necessary intention. The desertion, in substance, means total denial of the obligation of marriage.
15. The question as to what amounts to desertion came for consideration before the Supreme Court in the case of Rohini Kumari v. Narendra Singhrespondent reported in AIR 1972 SC 459 and it was held that desertion the meaning of S. 10(1)(a) of the Act read with the explanation does not imply only a separate residence and separate living. It is also necessary that there must be a determination to put an end to marital relation and cohabitation. Without animus deserendi there can be no desertion within the meaning of S. 10(1)(a) of the Act.
16. Now the fact of the present case has to be considered to find out as to whether the appellant has proved desertion or not. The said point has to be considered from the two angles; firstly, whether there was desertion or not at all from the side of the wife and secondly, even if there was desertion then whether the same was for statutory period that is to say for the period of two years immediately before presentation of the petition.
17. According to the case of the appellant, respondent deserted him on 5th May, 1984 when she left his house. In court the appellant had made out a new case and stated that the respondent while living at his place insisted that she should be sent back to her father's place otherwise she would commit suicide and implicate the appellant's family members and thereafter he sent a letter to the elder brother of the respondent who sent his younger brother who took her to his place. He has also stated that she remained only at his house for 3 to 4 months. On the other hand, A.W 2 (father of the appellant) though in his examination-in-chief stated that the respondent remained at his house only for 3 months but has stated in paragraph 14 of his cross-examination that she remained at sasural for about 15 to 16 months. According to the evidence of the appellant the respondent went out of her own volition from the matrimonial house. The respondent's case, on the other hand, is that she was living at her husband's place and used to visit her naihar off and on along with her husband. Her husband was forcing her to bring Rs. 10,000/- from her father for purchasing a motor cycle. When she said that her father was not in a position to give so much money thereafter her husband and in-laws became angry and indulged in assaulting her. In July, 1985 her husband took her to Nirsa Bazar on the pretext of marketing and there she was left alone. Trilochan Chakraborty O.P.W 1 who was a driver of the private car gave her lift and took her to her father's place. Thereafter her husband never came to take her back to his place. The evidence given by the appellant and his father is inconsistent as to the period of stay and also as to the reason for leaving matrimonial house and their evidence do not inspire confidence at all. The evidence given by the respondent is supported by her father and appears to be more probable and there is nothing in their evidence to reject their testimony and it appears that the respondent was left at Nirsa Bazar by the appellant and accordingly, appellant has failed to prove desertion on the part of the respondent.
18. Even if it is assumed that there was desertion by the respondent even then the appellant cannot get a decree of divorce on this ground as according to his case she has been living at her father's place for about one and half years only immediately preceding the presentation of the petition whereas clause (ib) of sub-section (1) of Section 13 of the Act requires that the petitioner can get the decree of divorce only if his or her spouse has deserted him/her for a continuous period of not less than two years immediately preceding the presentation of the petition. The said requirement has not been fulfilled in this case.
19. The other ground is cruelty. Under this head the appellant has sought relief on two grounds: firstly, that there was no consummation of marriage between him and the respondent and secondly, that respondent had assaulted him, his brother and father and had also misbehaved with them. Prior to the amendment of Section 13 of the Act by the Marriage Laws (Amendment) Act, 68 of 1976 cruelty was not a ground for obtaining divorce. Now after the amendment the cruelty is a ground for obtaining the judicial separation as well as dissolution of marriage by a decree of divorce. The relevant portion of Section 13 of the Act provides that either party to a marriage may present a petition for the dissolution of marriage by a decree of divorce on the ground that other party after the solemnization of marriage has treated the petitioner with cruelty.
20. The crutly has not been defined under the Act and the reason is obvious. The acts and behaviour of human being are diverse and infinite and it is impossible to give a definition which will include all acts and conducts amounting to cruelty. Whether a particular act or conduct will amount to cruelty or not will depend upon the facts of each case. However, two elements are required to be proved for obtaining a decree of divorce namely, the act complained of i.e the nature of the cruel treatment and secondly, its effect on the aggrieved spouse. Whether the acts complained of are such as giving rise to a reasonable apprehension that living with the other spouse is harmful and injurious. However, the Supreme Court in the case of Shobha Rani v. Madhukar Reddl. reported in AIR 1988 SC 121 held that there may be cases where the conduct complained of itself is bad enough and per se unlawful and illegal and in such cases court should not enquire as to its effect on the other spouse because the proof of the conduct will itself amount to cruelty.
21. The question whether a particular act or behaviour will amount to cruelty or not depends upon the character, way of the life of the parties, their social and economic conditions, their status, customs and traditions. Each case is to be decided on the facts of its own. The Judges and the lawyers should not import their own notions of life while deciding the matrimonial cases. The Supreme Court in the case of Shobha Rani v. Madhukar Reddl. (supra) held as follows (at page 123):
“It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon, (1966) 2 All ER 257 (259) “the categories of cruelty are not closed.” Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful/realm of cruelty.”
22. Now the fact of the case has to be considered to find out whether the appellant has proved cruelty on the part of the respondent. So far as the case of the appellant that there was no consummation is concerned, it was submitted on behalf of the appellant that the appellant's claim that there was no consummation after the marriage stands proved by the fact that the assertion in the application was not denied by the respondent in the written statement. In the application, the appellant (petitioner) has stated that the marriage has not been consummated and there was no issue out of their wedlock. The respondent in her written statement in paragraph 16 asserted that she lived in the house of the appellant most of the time and performed all the duties of a faithful Hindu wife to the best of her ability and in my view, the aforesaid statement will amount to denial of the fact that the marriage has not been consummated as alleged by the appellant. In paragraphs 5 and 12 of her deposition, she asserted that marriage was consummated. The aforesaid allegation of the appellant is further falsified by the fact that when the father of respondent went to meet him and enquired about the reason of the differences between them then the appellant stated stated that the respondent was insisting upon him for separation from his parents. He did not complain of any other misbehaviour on her part. In my view, the appellant has not been able to prove that there was no consummation at all of her marriage.
23. According to the appellant's case the respondent assaulted him, his father as well as misbehaved with his brother and old parents. The brother and mother of the appellant have not been examined to support the allegation. In the court the appellant does not state that he was assaulted by the respondent. With regard to assault on father of the appellant, the evidence on the record is a contradictory one. According to the appellant, his father was assaulted once by her leg whereas according to his father he was assaulted twice at the interval of three to four months. As stated above, the evidence on the record must show that the aggrieved person or his parents were treated with cruelty. In this case, on the basis of the aforesaid contradictory statement of the interested witnesses it is difficult to hold that the said allegation has been proved by the appellant.
24. The respondent has denied the aforesaid allegation and has further stated that she respected her father-in-law and mother-in-law and she would not even imagine to show disrespect to her in-laws much less to assault them. After considering the entire evidence on the record and the submission made on behalf of the parties, I am of the view, that the appellant has failed to prove any of the grounds for dissolution of marriage by a decree of divorce.
25. The court below while dismissing the application of the appellant has granted Rs. 300/- per month as maintenance pendente lite and Rs. 700/- towards the expenses for contesting the suit. The aforesaid amount has been awarded after considering the evidence on the record and I do not find any illegality and infirmity in the said direction given by the court below.
26. In the result, this appeal is dismissed but there will be no order as to costs.
Appeal dismissed.