A.C Upadhyay, J.:— This matrimonial appeal is directed against the judgment and order dated 16.12.2003, passed by the learned District Judge, Golaghat, in case No. T.S (M)12/2002, dismissing the prayer of the appellant-husband for a decree of divorce under section 13(1) of the Hindu Marriage Act, 1955.
2. We have heard Ms. P. Bhattacharya, learned counsel, appearing on behalf of the appellant husband. However, none appears for the respondent-wife despite service of notice.
3. The facts in brief, leading to filing of this appeal, may be narrated as follows:
On 3.6.1998, the appellant and the respondent got married according to the Hindu rites and customs, and started living together as husband and wife. Immediately after the marriage, the respondent started showing some signs unreasonable character and behaviour. However, both appellant and respondent continued to live together as husband and wife. As a result of their cohabitation, the respondent-wife conceived through him, but for lifting of a ‘devan’ (bed) by the respondent at the residence, there was a miscarriage of the pregnancy. Nevertheless, subsequently the respondent-wife once again conceived for the second time, however, during the period of her second pregnancy she purportedly had made an attempt to commit suicide. According to the appellant, on his intervention the respondent was taken to a nursing home, for medical treatment. However, the second pregnancy also was miscarried. Having found no alternative the appellant-husband took his wife to her parental house at Marangi. But on 30.11.1998, the respondent-wife once again came back to his house and started living with him, but the appellant submitted written information to the police on 1.12.1998 stating therein that the appellant had a tendency to commit suicide. Having come to know about the information given by the appellant to the police, the respondent-wife left his house on 1.12.1998 and since then she did not come back to stay with the appellant. The appellant, having found no way out, filed the suit seeking decree for divorce, as per provisions of section 13 of the Hindu Marriage Act, on the ground of desertion and mental cruelty.
4. The respondent entered appearance before the trial court and filed her written statement stoutly denying all the allegations contained in the petition for divorce. The respondent-wife stated in her written statement that after their marriage both of them cohabited as husband and wife by residing together. According to the respondent, the appellant-husband used to ill-treat her by inflicting physical torture and by misbehaving with her, for not having begotten his child. The respondent also alleged that though she was ever willing to stay with the appellant as his legally married wife by cohabiting with him, but the appellant did not want her to stay with him.
5. On the basis of the pleadings of the parties, the learned trial court framed the following issues, for just decision of the case:
(i) Whether there is cause of action for this suit?
(ii) Whether the respondent was found to have some unreasonable character and behaviour from the next day of marriage on 4.6.1998 at her matrimonial house?
(iii) Whether the petitioner ill-treated the respondent by way of physical tortures and kept her away without reasonable cause?
(iv) What relief/reliefs, if any, the petitioner is entitled to?
6. During the course of hearing the appellant-husband adduced his own testimony and the testimony of his elder sister, Satyamoni Dutta Dr. Bijay Prasad Borah, Psychiatrist and one Ritu Borah an independent witness. The respondent-wife also adduced her own evidence in support of her contention denying all the allegations levelled against her.
7. Insofar as Issue No. 2 is concerned, Sri Arunjyoti Dutta (PW 1) stated that the respondent-wife had shown abnormal behaviour, but upon perusal of the evidence of the witnesses and materials on record, it appears that the respondent-wife is a teacher by profession in a local school and there is no evidence of abnormal behaviour and/or any visible signs of her mental disorder as alleged. The stray incident of sitting in the bedroom with a knife in her hand, when husband and wife are only in the bedroom on the third day of their marriage, has not been supported by any of the independent witnesses. Smt. Satyamani Dutta (PW 4), sister of the appellant-husband, was not an eye witness to the occurrence.
8. On the other hand, the respondent-wife in her written statement as well as in her evidence totally denied that she had ever misbehaved in the manner as alleged by the appellant.
9. However, fact remains that even in spite of the alleged unpleasant incident between the parties, respondent admittedly continued to remain in the intimate company of the appellant-husband in his house and also conceived twice. Therefore, the aforesaid unreasonable character behaviour as alleged by the appellant, even if it is accepted to be true, cannot be said to be more than normal ‘wear and tear’ of a family life.
10. Appellant asserted that respondent-wife attempted to commit suicide, for which she was taken to a nursing home to consult a Psychiatrist. But, Dr. Bijoy Prasad Borah, PW 5, Psychiatrist, who was examined as witness by the appellant categorically denied that he had ever certified the opposite party as mentally unsound person. Further the appellant adduced no evidence whatsoever to prove the fact of respondent attempting to commit suicide.
11. Admittedly, after all these incidents as stated above, when the respondent came back on 30.11.1998 voluntarily, to join the company of the appellant, for the purpose of staying together with him, the appellant, instead of allowing her to lead a peaceful conjugal life, informed the police regarding her tendency to commit suicide. Apparently, this would go to show there was no sincere effort on the part of the appellant to greet her back to her matrimonial home. On the contrary, it is difficult to believe that a husband yearning for the revisit of his wife, in his true wits would inform the police. It seems that the appellant indirectly refused to keep her with him. The information so given to the Police without rhyme or reason would obviously affect adversely on the respondent-wife, who was a teacher by profession in the local school. Therefore, the reason of leaving the house of the appellant-husband on 1.12.1998 by the respondent-wife, apparently, is due to alleged torture and lack of faith and suspicion expressed by the appellant-husband. We find no evidence on record to come to a conclusion that the appellant-husband ever made any attempt to call his wife back from her matrimonial home. Instead of persuading his wife to join his company, the appellant, apparently, discouraged her coming to his house. PW 1 in his cross-examination admitted that he took the respondent-wife to her mother's house for a change. However, he had never gone to the house of his in-laws to bring her back to his residence.
12. Though the appellant alleged unsoundness of mind of the respondent, however, evidence of Dr. Bijoy Prasad Borah, PW 5 did not state anything about the unsoundness of mind and unnatural behaviour on the part of the respondent-wife. Moreover, we see from the cross-examination of PW 5, that he could not even remember for what disease he had prescribed medicines for the respondent.
13. Although the appellant stated to have informed the police regarding attempt made by the respondent to commit suicide, but made no effort whatsoever to establish such fact.
14. The relevant statutory provisions of the Hindu Marriage Act, 1955, regarding ‘Cruelty, desertion’ and ‘mental disorder’, [13(1)(i-a), (i-b) and 13(1)(iii)] for adjudication of this case are summarized as follows:
“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, by dissolved by a decree of divorce on the ground that the other party—
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty;”
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.— In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, Psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment; or]
[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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]”
15. Now the question is, whether a mere allegation of mental disorder or unusual behaviour of the spouse is sufficient to obtain a decree of divorce? In Sharda v. Dharmpal, (2003) 4 SCC 493, Hon'ble Supreme Court held that a sound mind indisputably is a key to a happy married life. A party to the marriage must, thus, have normal and sound mind so as to live a happy marital life. A disorder of thought, behaviour and mind leading to unsoundness of mind may give rise to a cause of action for filing an application under section 13(1)(iii) of the Hindu Marriage Act. The burden of proof of the existence of requisite degree of mental disorder is on the spouse making the claim on that state of fact. The decisions rendered by various courts of this country including this court lead to a conclusion that a decree for divorce in terms of section 13(1)(iii) of the Act can be granted in the event the unsoundness of mind is held to be not curable. A party may behave strangely or oddly inappropriate and progressive in deterioration in the level of work may lead to a conclusion that he or she suffers from an illness of slow growing developing over the years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. A few strong instances indicating a short temper and somewhat erratic behaviour on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder.
16. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, Hon'ble Supreme Court observed that mental disorder as a ground of divorce is only applicable, where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. We may depict herein below the relevant extract of the decision as follows:
“Section 13(1)(iii) “mental disorder” as a ground of divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible, it may furnish a good ground for nullifying the marriage because to beget children from a Hindu wedlock is one of the principal aims of Hindu marriage where sanskar of marriage is advised for progeny and offspring. This view was taken in Alka Sharma v. Abhinesh Chandra Sharma, AIR 1991 MP 205.”
17. The Apex Court in Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73 has explained the term, ‘desertion’ in the, context of section 13(1)(i-b) in the following manner:
“8. “Desertion” for the purpose of seeking divorce under the Act, means the unintentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligation of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from matrimonial obligations, i.e, not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalizes the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the view of various authors, this court in Bipinchandra Saisinhbhai Shah v. Prabhavati, AIR 1957 SC 176 held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion……..”
18. In Parveen Mehta v. Inderjit Mehta., (2002) 5 SCC 706, Hon'ble Supreme Court explained the meaning of ‘Cruelty’ for the purpose of section 13(1)(i-a), as follows:
“21. Cruelty for the purpose of section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty” is a state of mind and feeling with one of the spouses due to the behaviour or behavioral pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviours in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach Should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”
19. It is a well-settled proposition of law that in proceedings for divorce, the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt [see Bipinchandra Saisinhbhai (supra)].
20. The appellant, to show the attempt made by him for reconciliation with the respondent has not adduced any evidence. On the Contrary, the appellant appears to be quite content in the respondent leaving his company.
21. In our opinion, there was no sincere effort on the part of the appellant to greet her back to her matrimonial home. On the contrary, it is difficult to believe that a husband yearning for the revisit of his wife, in his true wits could remain silent. On top of it, there is evidence to show that the respondent continues to affirm her marriage, her readiness and willingness to resume her married life with the appellant. The appellant on the other hand, miserably failed to establish any of the grounds set forth in the petition for divorce.
22. On careful consideration of the materials on record, we find that the respondent wife has not treated the appellant-husband with cruelty rather she tolerated the cruelty meted out on her. As discussed above, we are of the opinion that the evidence adduced on behalf of appellant as regards cruelty, desertion and alleged unsoundness of mind of the respondent, being unsteady, shaky and poor, cannot be relied on to grant the dissolution of marriage, as prayed for on behalf of the appellant. From the evidence of witnesses examined by the appellant it appears that the appellant could not discharge the burden of proving the facts alleged in the petition for divorce for obtaining a decree as sought for. On the contrary, it has been amply established that the appellant was trying to get rid of his wife, on some pretext or the other. He was thus, evidently engrossed only in creating a unfriendly atmosphere at home to discourage the return of the appellant to his house and then take advantage of his own wrong to obtain a decree of divorce by falsely projecting that she has deserted him. This is not at all acceptable. The fact of filing FIR on the date on which the respondent-wife, came back to join his company, reasonably concludes that the appellant-husband did not want the respondent-wife to live together with him.
23. Learned counsel for the appellant-husband strenuously submitted that the marriage ties between the parties have irretrievably broken down and there is no possibility of reconciliation between the husband and the wife, and all attempts for reconciliation have also failed. However, it is worth mentioning that irretrievable breakdown of marriage is not a ground by itself for divorce. Certainly, it is not a wonderful magic formula to be adopted in every such case, where the appellant-husband fails to prove the grounds for divorce. We are aware that this court is not authorized by any of the provision of law to dissolve the marriage between the appellant and the respondent on the ground of irretrievable breakdown of marriage. The equity jurisdiction exercised by the Apex Court under article 142 of the Constitution to do complete justice is admittedly not available with us.
24. Apparently, from the evidence on record it appears that there is evidence of some tensions and quarrels between the appellant-husband and the respondent-wife coupled with some allegations and counter-allegations between themselves. These are no more than normal ‘wear and tear’ of family life and are not sufficient to grant a decree of divorce.
25. In view of the above discussion and on careful consideration of the evidence of the witnesses as discussed above, we find no ground for disagreeing with the decision of the learned court below. Accordingly, the judgment and order of the learned court below is affirmed as it is and the appeal is dismissed with costs.
Trial court records be sent back.
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