NARESH v. SMT.GEETA

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allegations that the respondent/wife had instituted a complaint under Section 498-A of the Indian Penal Code (for short 'the 'IPC'') at Police Station Sabalgarh District Morena vide Crime No.86 of 2006 and had also filed an application under Section 125 of the Code of Criminal Procedure, 1973 for maintenance. In the application, it was alleged that the respondent/wife used to humiliate him and his father by uttering filthy language and had left her matrimonial house without informing the appellant/husband due to which, he had undergone a lot of mental stress and now, it is not possible to live with the respondent/wife.

4. In the written statement, it was contended by respondent/wife that their marriage had taken place on 21.11.2000 and not in the year 1996 as has been alleged by the appellant/husband and at the time of marriage, the appellant/husband was major. Today also she is ready to live with the appellant/husband and since she was harassed for demand of dowry, therefore, she had made a complaint under Section 498-A of the IPC, on the basis of which, one Criminal Case No.600211 of 2008 was registered against the appellant/husband. It was also contended that she is ready to perform the duties of wife but since the appellant/husband wants to contract second marriage, he has filed the present divorce petition.

5. On the basis of pleadings of the parties, the learned Trial Court framed the issues with regard to cruelty and desertion.

6. After evaluating the evidence brought by the parties on record, the learned Trial Court dismissed the petition for divorce holding that the appellant/husband could not prove that respondent/wife had committed mental cruelty upon him nor he could prove that on her own accord, she had left his company and is living with her parents, therefore, the ground of desertion was also not held to be proved.

7. Learned counsel for the appellant/husband vehemently argued that

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the impugned judgment and decree dismissing the application for divorce on the ground of cruelty and desertion is per se illegal and contrary to law. It was further contended that while deciding the issues, learned Trial Court had totally overlooked the evidence available on record specifically with regard to issue No.1 wherein it was proved by the evidence that the respondent/wife is living separately since 2003 without any reason and she had left her matrimonial house without informing the appellant/husband or his family members, hence, constrained, the appellant/husband had to move an application under Section 9 of the HMA for restitution of conjugal rights but during the conciliation proceedings, the respondent/wife refused to come back. The matter was also tried to be resolved by calling a Panchayat but the respondent/wife was not ready to forego the differences, therefore, ultimately the appellant/husband withdrew the application under Section 9 of the HMA and filed an application under Section 13 of the HMA for divorce. It was further contended that the learned Trial Court ignored the very aspect of lodging of an FIR against the appellant/husband and his family members including his uncle and aunt which was tried as a Criminal Case No.600211 of 2008 but later on, the said complaint got dismissed and since a false complaint for demand of dowry was made and as the complaint itself was found to be false by the learned Trial Court, holding it to be a sufficient ground for mental cruelty it should have granted a decree for divorce on this count alone. It was further argued that the learned Trial Court had also erred in not granting the decree for divorce on the ground of desertion as admittedly the complaint which was lodged with regard to demand of dowry was false, which the respondent/wife had made the basis for leaving the house and therefore, it should have been held that without any reason, she had left the company of the appellant/husband and was living separately. It was

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further argued that the respondent/wife had not allowed the appellant/wife to cohabitate, which also amounts to mental cruelty. On the basis of the aforementioned grounds, learned counsel for the appellant/husband submits that learned Trial Court had committed illegality in dismissing the divorce petition when there was ample and cogent reason demonstrated by him. Thus, prayed for setting aside the impugned judgment and decree and further prayed for granting divorce on the counts of cruelty and desertion.

8. Per contra, learned counsel for the respondent/wife submitted that marriage of the parties took place in the year 2000 and not in the year 1996 as has been alleged and after marriage, she had performed the duties of a wife and a daughter-in-law but since she was harassed on account of demand of dowry and the appellant/husband wanted to marry an educated girl, the appellant/husband had driven her out of the house. Hence, constrained she lived with her father and lodged a complaint against the appellant/husband and his family members. She had denied the allegations that she used to harass the appellant/husband and his parents and was reluctant in doing household work. It was further argued that at no point of time, the respondent/wife used to fight with the appellant/husband whenever he used to go to Gwalior for studies. Thus, it was submitted that the allegations levelled against the respondent/wife since were baseless, the learned Trial Court had rightly dismissed the suit for divorce on the counts of cruelty and desertion.

9. Heard learned counsel for the parties and perused the record.

10. To ascertain the allegations which have been levelled by the appellant/husband, this Court deems it necessary to go through the statements of the appellant/husband and statements of the witnesses examined by the parties, but before that it is necessary to understand the concept of cruelty. It is well settled that expression ''the concept of

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cruelty'' which has been dealt with in Halsbury's Laws of England [Vol.13 4^thEdition Para 1269]. Relevant extract whereof reads as under:

"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse"

11. The test of cruelty has been laid down by the Hon'ble Supreme Court in the matter of Dr N.G Dastane v. Mrs S. Dastane ., reported in (1975) 2 SCC 326; wherein, it has been observed as under :

"The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent...."

12. In Shobha Rani v. Madhukar Reddi, reported in (1988) 1 SCC 105, the Hon'ble Supreme Court examined the concept of cruelty. It was observed that the term 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(ia) of the HMA in the context of human conduct and behavior in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one spouse

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which adversely affects the other spouse. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of degree which is relevant. If it is mental, an enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.

13. In the matter of V. Bhagat v. D. Bhagat (Mrs) .), (1994) 1 SCC 337; the Hon'ble Supreme Court has observed as under:

"Mental Cruelty in Section 13(1)(ia) of the said Act, 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 unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will

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be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment or conduct …..... . 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."

14. Similar view has been taken by the Hon'ble Supreme Court in the matters of Vinita Saxena v. Pankaj Pandit reported in (2006) 3 SCC 778 and Samar Ghosh v. Jaya Ghosh . reported in (2007) 4 SCC 511.

15. In a very recent judgment of the Hon'ble Supreme Court in the case of Rani Narasimha Sastry Vs. Rani Suneela Rani reported in 2020

(18) SCC 247 it has been observed that "when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A of IPC, leveled by the wife against the husband, it cannot be accepted that no cruelty has been meted out on the husband".

16. Thus apart from the regular grounds, the ground of leveling false allegations with regard to demand of dowry and registration of a false crime under Section 498-A of the IPC can be a valid ground on the basis of which, mental cruelty can be claimed and on this count, the Courts can grant decree for divorce.

17. On the touchstone of the above enunciations if the facts of present case are tested and after going through the evidence led by the parties, it would be reflected that the appellant/husband had examined himself as AW-1 and in his examination-in-chief, he had tried to canvass that from very inception of the marriage, the respondent/wife had mentally harassed him and at number of times, she had insulted him in front of others. She never used to cook food for his father and whenever he used

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to go to Gwalior, she used to fight with him and stay with her parents and ultimately, in the year 2003, she had left the house once for all. From his statements, it is revealed that an application under Section 9 of the HMA was filed for restitution of conjugal rights, but later on it was withdrawn and the application for divorce was filed thereupon. It is further revealed that the respondent/wife had registered a crime under Section 498-A of the IPC against the appellant/husband and his family members and even had implicated his uncle and aunt but which later on culminated in their acquittal. Likewise, the witnesses examined on behalf of the appellant/husband, namely, Purushottam (AW/2), Jaswant (AW/3), father of the appellant/husband, Vijay Sharma (AW/4) had tried to support the contentions of the appellant/husband with regard to the incidence of harassment which has been stated by the appellant/husband in his statement.

18. In contrast, the statements of the evidence adduced on behalf of the respondent/wife, it appears that she herself has got examined as DW/1 wherein she had denied all the allegations which have been levelled against her but she had admitted one fact that she had lodged a complaint against the appellant/husband and his family members under Section 498-A of the IPC on the basis of which, they were tried.

19. The fact of lodging of a complaint under Section 498-A of the IPC has also been admitted by Roshan Lal (DW/2), father of respondent/wife. Similarly, the other witnesses, namely, Bhanwarpal Rawat (DW/3) and Munnalal (DW/4) though had supported the case of the respondent/wife but had admitted that she had lodged a complaint with regard to demand of dowry against the appellant/husband and his family members.

20. From bare reading of the judgment in the criminal trial faced by the appellant/husband and his family members under Section 498-A of

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the IPC, it would be evident that apart from the allegations with regard to demand of dowry, questions were also put to the defence witnesses that whether the appellant/husband had also contracted second marriage and in that context, another complaint has been lodged against the appellant/husband. Thus, apart from the false allegations for demand of dowry, the above allegations are also required to be taken note of.

21. Upon critical evaluation of the evidence led by the parties, the learned Trial Court found that it was not the respondent/wife who has left her matrimonial house, rather it was the appellant/husband who had driven her out of the house. Further, it went on to hold that since a criminal case registered against the appellant/husband and his family members under Section 498-A of IPC was still pending and Jaswant (AW/3), the father of the appellant/husband, in paragraph 18 of his statement has admitted that the appellant/husband had asked for return of some gold and silver jewellery, therefore, it cannot be said that Geeta had lodged a false complaint against the appellant/husband and his family members and therefore, on the counts of desertion and cruelty, the learned Trial Court dismissed the divorce petition which does not appear to be correct.

22. Admittedly, the appellant/husband was acquitted of Criminal Case No.600211 of 2008 as it would be evident from the judgment dated 26.02.2018 passed by the JMFC, Sabalgarh, District Morena which since was passed after the impugned judgment and decree, would be required to be taken note of.

23. Since the very cause of leaving the house by the respondent/wife was harassment and physical abuse with regard to demand of dowry by the appellant/husband and his family members got falsified from the judgment of acquittal in the allegation of offence under Section 498-A of IPC and also due to the fact that prior to filing of this divorce petition,

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the appellant/husband had filed an application under Section 9 of the HMA for restitution of conjugal rights but there also during conciliation proceedings, the respondent/wife had refused to come back clearly establishes that it was the respondent/wife who had deserted the appellant/husband.

24. In the light of the judgment passed by the Hon'ble Supreme Court in the matter of Rani Narasimha Sastry (supra), since the appellant/husband had undergone the trial in which he was later acquitted of the allegations under Section 498-A of the IPC levelled by the respondent/wife, it can be said that cruelty with the appellant/husband was meted out and thus, since the complaint was proved to be false, the judgment and decree passed by the learned Trial Court cannot be said to be justified. Since this Court had come to a conclusion that the reason for leaving the house by the respondent/wife is harassment with regard to demand of dowry, had been held to be false, the very living away from the appellant/husband would amount to desertion, therefore, on this count also, the appellant/husband is entitled to get the decree for divorce.

25. Thus, in the light of the above discussion, this Court comes to a conclusion that the appellant/husband had been able to make out a case of cruelty and desertion against respondent/wife and therefore, the judgment and decree dated 23.02.2010 passed by the learned Second Additional District Judge (Fast Track Court), Sabalgarh, District Morena in Case No.33 of 2009 (HMA) is hereby set aside. The marriage between the appellant/husband and the respondent/wife is hereby dissolved.

26. Since this Court had arrived at a conclusion that the appellant/husband is entitled for a decree of divorce and as the respondent/ wife was getting interim mainteance under Section 24 of the

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Hindu Marriage Act the question here would be that in absence of any application under Section 25 of the Hindu Marriage Act whether this court can direct for grant of permanent alimony/maintenance to the respondent/wife. In that context, it is first necessary to consider the provisions of Section 25 of the Hindu Marriage Act, which reads as under:

"25. Permanent alimony and maintenance .

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just."

27. The expression "on an application made to it for the purpose"

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does not admit to any ambiguity and for claiming any relief under Section 25 of the Hindu Marriage Act it is obligatory for the wife to move an application in that regard and in absence thereof the Court has no jurisdiction to pass an order under Section 25 of the HMA. After considering the language employed, the ambit and scope of Section 25 of the Hindu Marriage Act, this Court in the cases of Jitbandhan Vs. Gulab Devi, reported in 1982 SCC Online MP 275, Division Bench in LPA 199/96 (J) (Chhaya Kshatriya Vs. Pramod Kumar Kshatriya) decided on 30.9.1997, in the matter of Bhikalal Vs. Kamlabai, 1 (1982) DMC 83 and in the matter of Meera Bai Vs. Laxminarayan Mishra 1 (1984) DMC 120 has held that in absence of an application under Section 25 of the Hindu Marriage Act Courts have no jurisdiction to grant permanent alimony.

28. Thus, in absence of any application and also in absence of any sufficient/complete material available before this Court on the basis of which any conclusion regarding alimony can be drawn, the issue of permanent alimony/maintenance is not gone into at present. However, this order will not come in the way of the wife to file appropriate application under Section 25 of the Hindu Marriage Act before the Court of competent jurisdiction and that ourt would be best suited to decide the said prayer for permanent alimony.

29. Accordingly, the appeal is hereby allowed and disposed of.

(RAVI MALIMATH) (MILIND RAMESH PHADKE)

CHIEF JUSTICE JUDGE

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