Dinesh v. Shantibai

List of cases referred: 1. Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan, (1981) 4 SCC 250 (Para 14) 2. Shobha Rani v. Madhukar Reddl., (1988) 1 SCC 105 (Para 14) 3. V. Bhagat v. D. Bhagat (Mrs)., (1994) 1 SCC 337 (Para 14) 4. Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73 (Para 14) 5. Gananath Pattnaik v. State Of Orissa, (2002) 2 SCC 619 (Para 14) 6. Parveen Mehta v. Inderjit Mehta., (2002) 5 SCC 706 (Para 14) 7. Anuradha Prafull Vaidh… v. Prafull Vaidh…., 2007 (4) MPLJ 123 (Para 15) 8. P. Gopirathnam v. Ferrodous Estate (P) Ltd., AIR 2007 (NOC) 1340 (MP) (Para 15) 9. Komal Singh Parihar v. Kusum Parihar, 2005 (7) MPLJ Note 5 : 2004 (II) MPJR SN 27 (Para 15) 10. Smt. Rajni v. Sanjay Kumar, II (2002) DMC 457 (Para 15) 11. Smt. Sadhana Srivastava v. Arvind Kumar Srivastava, AIR 2006 Allahabad 7 (Para 15) 12. Sandhva Rani v. Kalyanram Narayanan, 1994 Supp (2) SCC 588 (Para 19) 13. Chandrakala Menon v. Vipin Menon. (1993) 2 SCC 6 (Para 19) 14. Kanchan Devi v. Promod Kumar Mittal, (1996) 8 SCC 90 (Para 19) 15. Swati Verma v. Rajan Verma, (2004) 1 SCC 123 (Para 19) 16. Prakash Chand Sharma v. Vimlesh, 1995 Supp (4) SCC 642 (Para 19) 17. Naveen Kohli v. Neelu Kohli., 2006 (3) MPLJ (SC) 1 : (2006) 4 SCC 558 (Para 19) 18. Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 (Para 19) 19. Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 (Para 19) 20. Manish Goel v. Rohini Goel., (2010) 4 SCC 393 (Para 19) 21. Vishnu Datt Sharma v. Manju Sharma, 2010 (1) MPLJ (SC) 18 : (2009) 6 SCC 379 (Para 19)

The Judgment of the Court was delivered by

Prakash Shrivastava, J.:— This First Appeal under section 96 of the Civil Procedure Code is at the instance of the plaintiff-husband against the judgment dated 16-2-2005 passed by the Court of Additional District Judge, Manasa, District Neemuch in Hindu Marriage Case No. 40/2005, dismissing the suit for divorce.

2. The appellant-husband had filed the suit for divorce on 6-5-2004 pleading that his marriage was solemnized with the respondent 22-23 years back and a female child was born out of the wedlock, Sometime after the marriage, the respondent had started pressurising the appellant to shift to her parents place as the father-in-law of the appellant had no male issue. When the appellant denied, the behaviour of the respondent changed and she started fighting with the family members of the appellant on small issues. About 10 years prior to the filing of the suit, the respondent had left the appellant's place along with her daughter and had gone to her parents place. The father of the respondent had filed a false complaint, alleging bigamy and cruelty against the appellant and his family members for offence under sections 494, 497, 498, 102 and 201/34 of the Indian Penal Code and the prosecution continued for seven years and ultimately they were acquitted on 5-11-2003. It was further pleaded that for last 9-10 years he had no marital relation with the respondent and respondent without justifiable reason was living separately, therefore, the decree for divorce was sought.

3. The suit was opposed by the respondent by filing the written statement and taking the plea that the appellant had contracted second marriage with a lady named Radhabai and had turned out the respondent from his house, therefore, she along with her daughter is living separately with her parents. Appellant has two issues from Radhabai. She also denied that her father was having no male issue by pleading that her father has an adopted son namely Lalit Kumar. She also pleaded that she had never pressurised the appellant to live with her parents. She denied any cruelty on her part and prayed for dismissal of the suit.

4. During the trial of the suit, the appellant had examined himself as P.W 1, his father Ratanlal as P.W 2 and Rajendra Singh as P.W 3. He had produced the documents Ex. P. 1 to P. 6. The respondent had examined D.W 1 Suresh Chandra, Director of Bright Way Middle School, Neemuch, herself as D.W 2, Ganpatlal, father-in-law of Lalit as D.W 3, Lalit Kumar Nagda, the alleged adopted son as D.W 4, Bhuralal the father of the respondent as D.W 5 and Ganesh Lal Kiloriya, the notary as D.W 6. The respondent had filed the documents Ex. D.1 to D.16

5. The trial Court, by the impugned judgment, found that the appellant failed to establish the ground of cruelty and desertion. The trial Court examined the question if Lalit Kumar was adopted by Bhuralal and placed reliance upon the evidence relating to his adoption. The trial Court also examined the plea of the respondent that the appellant had contracted second marriage with Radhabai, but the trial Court did not record any definite finding in this regard. Thus, the trial Court dismissed the suit.

6. Learned counsel for appellant submitted that the plea of cruelty is proved from the evidence on record especially on account of the false prosecution of the appellant for different offences at the instance of the respondent. He also submitted that it is a case of irretrievable breakdown of marriage and since the respondent is living separately for last several years without any justifiable reason, therefore, plea of desertion is also established. In support of his submission, he has relied upon the several judgments of the Supreme Court and different High Courts.

7. Learned counsel for the respondent, supporting the judgment of the trial Court submitted that the behaviour of the respondent towards the appellant or his family members was never cruel and that the respondent is living separately since the appellant had contracted second marriage. He has also submitted that no ground is made out for granting decree of divorce on the basis of irretrievable breakdown of marriage.

8. We have heard the learned counsel for parties and perused the record.

9. The following issues arise for determination in this appeal:—

(1) Whether the appellant is entitled to the decree of divorce under section 13(1)(ia) of the Hindu Marriage Act on the ground of cruelty by the respondent?

(2) Whether it is a case of irretrievable breakdown of marriage?

(3) Whether the appellant is entitled to the decree of divorce under section 13(1)(ib) of the Act on the ground of desertion by the respondent?

The first issue as to whether the appellant has successfully proved the cruelty on the part of the respondent which can furnish a ground for divorce?.

11. It is undisputed that the father of the respondent had filed a criminal case against the appellant and his family members alleging commission of offence under sections 494, 497, 498-A, 109 and 201/34 of the Indian Penal Code. The complaint in criminal case Number 129/1993 dated 18-7-1991 filed by Bhuralal, the father of the respondent is Ex. P. 1. The said complaint was at the instance of the respondent which is apparent from her statement recorded during the trial as discussed in the judgment of the criminal case. The appellant (P.W 1) has stated that the trial of the said case had continued in the Court of Judicial Magistrate, Neemuch for seven years and during this period, the appellant, his parents and other family members were required to repeatedly visit the Court and sit there for the whole day. The female members of the appellant were also made accused and they used to sit the whole day in the Court premises facing humiliation. The same fact has been reiterated by P.W 2 Ratanlal, father of the appellant and P.W 3 Rajendra Singh.

12. In the criminal complaint, an allegation was made that the appellant and his family members had treated the respondent with cruelty and that the appellant had contracted second marriage with Radhabai, therefore, committed the offence of bigamy. By the judgment dated 5th November, 2003, in Criminal Case No. 129/1993 (Ex. P. 2) the appellant and his family members were acquitted from those offences. On the perusal of Ex. P. 2, we have found that though the allegation of cruelty and bigamy were made against the appellant, but the respondent or her father had failed to substantiate the same by producing any cogent evidence. The JMFC has categorically found that the complainant failed to prove the allegation of cruelty or bigamy. The fact relating to the prosecution of the appellant and his family members has been admitted by the respondent and her father D.W 5 Bhuralal. Thus, from the aforesaid evidence, it is established that the prosecution of the appellant and his family members had taken place for offence under sections 498-A and 494/109 of the Indian Penal Code at the instance of the respondent on the grounds which did not prove, hence it was a case of false prosecution.

13. We have also noticed that at the instance of the respondent and her family members the appellant was prosecuted and was fined by judgment dated 22-9-1992 in Criminal Case No. 1767/1992 (Ex. D.1) by CJM, Neemuch.

14. The cruelty has not been defined under the Hindu Marriage Act, but by way of several judicial pronouncements the concept and scope of physical and mental cruelty has been elaborated. It is the settled position in law that the word cruelty has been used in section 13(1)(ia) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial differences or obligations. It is a course of conduct of one which is adversely affecting the other. If the cruelty is physical, it is a question of fact and degree and if it is mental, the enquiry should begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Mental cruelty 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. 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 taken cumulatively. See Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan, reported in (1981) 4 SCC 250, Shobha Rani v. Madhukar Reddl., reported in (1988) 1 SCC 105 V. Bhagat v. D. Bhagat (Mrs)., reported in (1994) 1 SCC 337, Savitri Pandey v. Prem Chandra Pandey, reported in (2002) 2 SCC 73, Gananath Pattnaik v. State Of Orissa, reported in (2002) 2 SCC 619 and Parveen Mehta v. Inderjit Mehta., reported in (2002) 5 SCC 706.

15. The Division Bench of this Court in the matter of Anuradha Prafull Vaidh… v. Prafull Vaidh…., reported in 2007 (4) MPLJ 123 has held that the decree of divorce on the ground of mental cruelty is justified in a case where the husband was acquitted in a complaint filed by the wife under section 498-A of the Indian Penal Code since the action on the part of the wife had led to the cruel treatment of the respondent apprehending that living together was not possible. Another Division Bench of this Court in the matter of P. Gopirathnam v. Ferrodous Estate (P) Ltd., reported in AIR 2007 (NOC) 1340 (MP) has taken the view that making a false allegation of cruelty under section 498-A of the Indian Penal Code against the husband by itself amounts to cruelty. In the matter of Komal Singh Parihar v. Kusum Parihar, reported in 2005 (1) MPLJ Note 5 : 2004 (11) MPJR SN 27 in a case when the wife had filed a criminal complaint under section 498-A making a false charge of illicit relationship of husband with another women, this Court held that a ground of cruelty is made out, taking the view that mere false allegation against the character of the husband itself amounts to cruelty. In the matter of Smt. Rajni v. Sanjay Kumar, reported in II (2002) DMC 457, this Court has upheld the decree of divorce which was granted by the trial Court on the ground of cruelty in a case where the wife had made false allegation against her husband regarding demand of dowry and cruel treatment by the husband. The Division Bench of Allahabad High Court also in the matter of Smt. Sadhana Srivastava v. Arvind Kumar Srivastava, reported in AIR 2006 Allahabad 7 taken the view that making of false allegation by the wife against the husband regarding illicit relationship and extra marital affair constitute mental cruelty of such nature that husband cannot be reasonably expect to live with wife. It has further been held that false criminal proceedings initiated by the wife against the husband, resulting into suffering from traumatic experience amounts to mental cruelty entitling husband to decree of divorce.

16. Thus, on the basis of the aforesaid analysis, we hold that the grounds of cruelty is made out on account of the false prosecution of the appellant and his family members for offences under sections 498-A and 494 of the Indian Penal Code. The appellant and his family members including the female family members of the appellant had to face agony of the trial of the criminal case for long seven years. They had to suffer the humiliation during this period and ultimately the charges levelled against them could not be substantiated, resulting into their acquittal.

17. The plea of adoption of Lalit Kumar by the father of the respondent has been raised with the sole purpose of establishing that the respondent was not pressurising the appellant to shift to her parents house since Lalit Kumar was already adopted by her father. Since the evidence on record establishes that Lalit Kumar was living with the respondent's parents, therefore, it can safely be held that the respondent was not pressurising the appellant to shift to her parents house on this count.

18. Another issue is about irretrievable breakdown of marriage. The record also indicates that it is a case of irretrievable breakdown of marriage. For all practical purpose the marriage has become dead. Undisputedly the respondent is living separately from the appellant for last about 16 years. In her affidavit before the trial Court dated 26-7-2005, she had admitted that she was living separately since 9-10 years back. The respondent in the present suit had taken the defence that the appellant had contracted second marriage with one Radhabai and he has also two issues from Radhabai and had also made an attempt to adduce the evidence to prove the said issue. Though, the trial Court has recorded suspicion in this regard, but no definite finding has been recorded by the trial Court. D.W 5 Bhuralal, father of the respondent has categorically stated before the trial Court that now both the parties cannot live together on account of second marriage by appellant. Considering the nature of allegation which have been made by the respondent and the fact that she is living separately for last several years and also taking into account the criminal prosecution of the appellant for the serious allegation such as cruelty and bigamy, it is established that the parties are not in a position to live together any longer. Their relations are so strained that there is no possibility of reconciliation.

19. The Supreme Court in the matter of Sandhya Rani v. Kalyanram Narayanan, reported in 1994 Supp (2) SCC 588 where the parties were living separately for more than 13 years took the view that the marriage between the parties has irretrievably broken down as there was no chance whatsoever of their coming together. Same was the view taken in the matter of Chandrakala Menon v. Vipin Menon, reported in (1993) 2 SCC 6 and in the matter of Kanchan Devi v. Promod Kumar Mittal, reported in (1996) 8 SCC 90. In the matter of Swati Verma v. Rajan Verma, reported in (2004) 1 SCC 123, large number of criminal cases were filed by one party against another and the Supreme Court took the view that the marriage between the parties had broken down irretrievably. In the matter of Prakash Chand Sharma v. Vimlesh, reported in 1995 Supp (4) SCC 642, the wife had expressed her willingness to go and live with the husband notwithstanding the presence of other woman, but the husband was not agreeable presumably because of remarriage, therefore, reconciliation was not found to be possible. The three Judge Bench of the Supreme Court in the matter of Naveen Kohli v. Neelu Kohli., reported in 2006 (3) MPLJ (SC) 1 : (2006) 4 SCC 558 has held that it is unrealistic for law not to take notice of the fact that irretrievable breakdown of marriage must be considered as a ground for grant of divorce. The same view has been reiterated in the subsequent judgments in the matter of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 and Manish Goel v. Rohini Goel., (2010) 4 SCC 393. The different view expressed by the Supreme Court in one of the judgment in the matter of Vishnu Datt Sharma v. Manju Sharma, reported in 2010 (1) MPLJ (SC) 18 : (2009) 6 SCC 379 was by a bench of lesser strength. Thus, from the above analysis, it is established that present is a clear case of irretrievable breakdown of marriage.

20. So far as the issue of desertion is concerned, section 13(1)(ib) of the Act requires desertion for a continuous period of not less than two years immediately preceding the presentation of the divorce petition. In the present case, the respondent Shantibai has admitted that she is living separately with her parent since 1995-1996 (since 9-10 years prior to giving the affidavit before the trial Court, on 26-7-2005). The statement of the appellant also indicates that the respondent is living separately with her parents since 1995-1996. The appellant has stated that he had no marital relation with the respondent since last 10-11 years. He has stated that for that reason he is having dry life” for last several years. The aforesaid position is also reflected from the statements of the other witnesses. The respondent's plea that she is living separately on account of the second marriage of the appellant cannot be accepted because the respondent has failed to produce any reliable evidence establishing the second marriage of appellant with Radhabai. The reliance on the affidavit (Ex. D.15) given by Radhabai does not establish second marriage since she has only stated that she is living in the appellant's protection for certain reasons, but she has not stated that she is living as wife of the appellant. Though the respondent has stated that she is ready to live with the appellant, but the father of the respondent has categorically stated that it is not possible for the respondent to live with the appellant. The respondent has failed to establish any reasonable cause for living separately for last about 15 years. Thus, it is clear that the respondent has deserted the appellant and ground for divorce under section 13(1)(ib) of the Act is made out.

21. In view of the aforesaid analysis, the impugned judgment of the trial Court is set aside and the appellant is granted the decree of divorce on the ground of cruelty under section 13(1)(ia) and desertion under section 13(1)(ib) of the Hindu Marriage Act, 1955.

22. The decree be prepared accordingly.

No cost.

Order accordingly.