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Reserved on : 07.09.2021 Delivered on : 17.09.2021 Court No. - 37
Case :- FIRST APPEAL No. - 373 of 2020
Appellant :- Rajesh
Respondent :- Neelam
Counsel for Appellant :- Hitesh Pachori
Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Subhash Chand,J.
(Per Justice Subhash Chand)
1. The appellant-husband, Rajesh, has filed the divorce petition against respondent-wife, Neelam, under Section 13
(1) (1-A) of Hindu Marriage Act before the family Court, Amrawati (Maharashtra), which was registered as a matrimonial Case No. 25 of 2005 and same was registered as matrimonial Case No. 48 of 2007. The said divorce petition was transferred by the order of Hon'ble Apex Court to the family Court at Agra.
2. The instant appeal is at the behest of the appellant, Rajesh, against the judgment dated 21.08.2020 and decree dated 01.09.2020, passed by the Additional Principal Judge, Family Court, Agra in Suit No. 25 of 2005 and 48 of 2007 (Rajesh Vs. Smt. Neelam), whereby the divorce petition of appellant was dismissed.
3. The brief facts giving rise to this appeal are that the appellant, Rajesh, filed the petition under Section 13 (1) (1-
A) of Hindu Marriage Act with these averments that the appellant was married with respondent, Neelam, on 17.02.2001, according to Hindu Rites and Rituals. The Neutral Citation No. - 2021:AHC:106150-DB
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marriage between the two was a settled marriage. Initially, the appellant was residing in a joint family along with his elder brothers, their wives, childrens and mother as well. The respondent is a lady of high temperament and used to pickup quarrel and used to refuse to perform the daily house hold works. The respondent did not like to reside in a joint family and stated that she would like to live separate. She did not like appellant and used to say that her marriage with him was against her wishes and she had no interest to lead matrimonial life with the appellant. She refused to have sexual intercourse with the appellant. On account of her abnormal behaviour, appellant brought her to the doctor, however, she refused to take medicines as prescribed by the doctor. The appellant has also decided to live separately from his parents along with respondent in rented house at Rukhmini Nagar, Amravati, Ambedkarnagar; but no change in the behaviour of respondent. On 02.10.2004, respondent quarreled with appellant and insisted her to go to her parental house. The appellant brought the respondent to her parent's house since then she has been residing at the house of her parents, being carrying on business of tailoring, beauty parlour and painting. Therefore, the respondent has subjected the appellant to mental cruelty, as such, there was no way out but to file the petition for divorce against the respondent, on the ground of cruelty.
4. The respondent-Neelam has filed the written statement, in which, she denied the averments of the divorce petition and in additional plea stated that she performed her matrimonial duties properly. Indeed the appellant and her family members were not satisfied with the endowment made at the time of marriage and they made an additional demand of Rs. 5,00,000/- in cash in
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dowry and for non fulfilment of the same, the respondent was subjected to physical and mental cruelty and on 09.10.2004, the appellant brought respondent to her parental house on the pretext that he was going on job to Ambala and after two or three days, he would take her back to in-laws' house; but since then the appellant did not contact her and appellant and his family members stated that they would not permit her to enter in-laws house till the demand of Rs. 5,00,000/- in cash was fulfilled. All these Streedhan of respondent is in possession of the appellant and his family members.
5. Learned trial Court, on the basis of pleadings and material on records framed following issues:-
1. Whether the respondent had caused cruelty to the appellant as alleged in the plaint if so its affect.
2. Whether the appellant is entitled to decree of divorce on the grounds taken in the plaint.
3. To what relief, the appellant is entitled.
6. On behalf of the appellant in oral evidence, he examined himself as PW-1, Rajesh, but no documentary evidence was produced.
7. On behalf of the respondent, she examined DW-1, Neelam, DW-2, Shri Niwas Gautam and DW-3, Shalini Gautam and in documentary evidence with the list 31 (C), filed the certified copy of first information report and judgement under Section 125 of Cr.P.C., dated 23.01.2017.
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8. Learned trial Court, after taking evidence and hearing both the parties, dismissed the divorce petition, vide judgement dated 21.08.2020.
9. Aggrieved from the judgement and decree dated 21.08.2020, this first appeal has been preferred on behalf of the appellant, Rajesh, on the ground that the impugned judgement is illegal, based on arbitrary and perverse findings. The appellant had made an averment in the petition that respondent had put him to cruelty and also deserted him and refused to cohabit and also adduced the evidence to that effect but same was not considered by the Court below. In retaliation to the divorce petition, filed on behalf of the appellant, dated 25.01.2005, the father of the respondent lodged the F.I.R. on 08.03.2005, against the appellant and his six other family members, which was registered as Case Crime No. 13 of 2005, under Sections 498-A, 323, 504, 506, 406 I.P.C. and 3/4 Dowry Prohibition Act, Police Station- Rakabganj, Agra. Learned trial Court has failed to appreciate this evidence on record that both the parties had been residing separately from last 10 years. In the criminal case, lodged against the appellant, the appellant had remained in jail for fifteen days and on his arrest by the police, he was beaten by shoes, by the informant and his family members. The Court below has failed to consider the mental pain and agony with which the appellant was suffering on account of cruel behaviour of respondent. The appellant has been paying Rs. 4,000/- per month as maintenance to the respondent.
10. We have heard the learned counsel for the appellant and perused the material on record.
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11. For disposal of this first appeal, the following points of determination are being framed.
12. Whether the respondent had caused cruelty to the appellant?
13. On this point of determination on behalf of the appellant, Rajesh, examined himself as PW-1, This witness,
PW-1, Rajesh, in his examination-in-chief has deposed the averments made in the divorce petition and stated that father of respondent had lodged F.I.R. against him and his family members under Sections 498-A, 323, 504, 506, 406 I.P.C. and 3/4 Dowry Prohibition Act wherein he was apprehended by police and beaten with shoes and he remained in jail and was granted bail after 20 days in jail and in his cross examination, he stated that, he has filed the divorce petition prior to the criminal case lodged against him by the respondent. It is correct to say that he does not want to reside with his wife because she has sent him in jail. Respondent, Neelam, was brought by him to her parental house at Agra on 09.10.2004 and thereafter, he never went to bring her. After solemnization of marriage, the sexual relations between him and his wife were up to March. After one year of marriage, he began to reside separate from his family along with his wife.
14. On behalf of the respondent in oral evidence examined herself as DW-1, Neelam, her father, Shri Niwas Gautam as DW-2 and her sister, Shalini Gautam as DW-3. DW-1. Neelam in her examination-in-chief deposed the defence averments on the written statement. In cross examination, this witness stated that she came to her parental house on 09.10.2004 and at that time she did not make any
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complaint to her parents. On 08.03.3005, the criminal case was lodged after lapse of one year. During this period of one year, no correspondence took place between her in-laws family and parental family. On lodging the F.I.R., her husband remained in jail for fifteen days. While lodging the F.I.R., nothing was mentioned in regard to any Panchayat having took place.
15. DW-2, Shri Niwas Gautam, in his examination-in- chief, supports the averments of written statement and in cross examination, this witness stated that before 09.10.2004, no complaint was made in regard to dowry demand and he is not aware whether the divorce petition was filed before lodging the F.I.R.
16. DW-3, Shalini Gautam, in her examination-in-chief, supports the averments of the written statement and in cross examination, this witness stated that her sister remained in-laws house for three years. Nothing was told to her in regard to demand of dowry by her sister. In the case, under Section 498-A I.P.C., Rajesh remained in jail and police had apprehended him.
17. Learned counsel contended that the respondent had treated him cruelty and since September, 2004, there is no cohabitation between the appellant and the respondent. The behaviour of respondent was cruelsome to him and his family, so he has filed the divorce petition against her and after filing the divorce petition, a false case for dowry was lodged against him in which on being apprehended by police, the family members of respondent had beaten him and he had to remain in jail for fifteen days. On account of false allegations and also having undergone fifteen days in
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jail, he cannot live matrimonial life with her. It is the respondent herself, who had deserted him and caused cruelty to him, therefore, there was no way out for him except to get the decree of divorce. In support of his contention, the learned counsel for the appellant relied on following case laws:-
(1) Naveen Kohli Vs. Neelu Kohli 2006 AIR (SC)
1675
(2) Samar Chosh Vs. Jaya Ghosh 2007 (4) SCC 511
(3) K. Srinivas Rao Vs. D.A. Deepa 2012 (S) SCC.
226
(4) Manoj Mittal Vs. Smt Rajni Mithal First Appeal 778 / 2017
(5) Deepak Vs. Smt. Radha Rani First Appeal 815 /
2017
18. We would like to examine the facts of the case in the light of the settled proposition of law which has been crystallized by a series of judgements and also in the light of facts and circumstances of this case we would also like to examine the concept of Irretrievable Breakdown of Marriage particularly with reference to recently decided cases.
19. We deem it appropriate to examine the concept of 'Cruelty' both in English and Indian Law, in order to evaluate whether the appellant's petition based on the ground of cruelty deserves to be allowed or not.
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(i) In Lord Denning, L.J. in Kaslefsky v. Kaslefsky [(1950) 2 All ER 398, 403] observed as under:
"If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament.
This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled."
(ii) In Lord Reid in Gollins v. Gollins [1964 AC
644] observed as under:
"No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health."
20. The principles of law which have been crystallized by a series of judgements of Hon'ble Supreme Court are reproduced as under :-
(I) In the case of Sbhoba Rani vs. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13 (1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or 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
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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. 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.
(II) Hon'ble Apex Court, in the case of Praveen Mehta vs. Inderjit Mehta reported in (2002) 5 SCC 706, defined cruelty as under:
"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 behavioural 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 misbehaviour 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 subject to mental cruelty due to conduct of the other."
(III) In Chetan Dass vs. Kamla Devi reported in (2001) 4 SCC 250 , this Court observed that the matrimonial matters have to be basically decided on its facts. In the words of the Court:
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"Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society.
The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of
"irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case."
(IV) In Sandhya Rani vs. Kalyanram Narayanan reported in (1994) Supp. 2 SCC 588, this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court granted the decree of divorce.
(V) In the case of Kanchan Devi vs. Promod Kumar Mittal reported in (1996) 8 SCC 90, the parties were living separately for more than 10 years and the Court came to the conclusion that the marriage between the parties had to be irretrievably broken down and there was no possibility of reconciliation and therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce.
(VI) In Prakash Chand Sharma vs. Vimlesh [1995 Supp (4) SCC 642], the wife expressed her will to go and live with the husband notwithstanding the presence of the other woman but the husband was not in a position to agree presumably because he has changed his position by remarriage. Be that as it may, a reconciliation was not possible.
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(VII) In A. Jaychandra v. Aneel Kumar, (2005) 2 SCC 22, a 3 judge Bench of this Court observed that the expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
(VIII) Hon'ble Supreme Court in Vijay Kumar Ramachandra Bhate Vs. Neela Vijay Kumar Bhate reported in AIR SCW 2530 for mental cruelty - Court to go by go by the intensity, gravity and stigmatic impact of it when meted out even once.
(IX) The Division Bench of this Court in the case of
Smt. Meena Singh Vs. Mithlesh Kumar Singh reported in AIR 2009 (NOC) 1891, held parties living separately for more than 18 years and no possibility of reconciliation. Following the principle of
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live and let live, it is desirable to grant the decree of divorce.
21. Admittedly, the respondent has been residing at her parental house since 09.10.2004 and this divorce petition was filed on behalf of appellant, Rajesh, on 25.01.2005. After filing this divorce petition on behalf of respondent, an F.I.R. was lodged against the appellant and his six family members, which was registered at Case Crime No. 13 of 2005, under Sections 498-A, 323, 504, 506, 406 I.P.C. and 3/4 Dowry Prohibition Act, Police Station- Rakabganj, Agra and it is also an admitted fact that on lodging this F.I.R., the appellant had to serve imprisonment in jail for fifteen days and while he was in hawalat on arrest by the police in the aforesaid case, he was also beaten by family members of respondent and this fact is also proved from the oral as well as documentary evidence on record. From 09.10.2004, when the respondent came to her parental house and up to the date of filing of the divorce petition on behalf of the appellant, no complaint was ever made on behalf of the respondent against the appellant in regard to the demand of dowry or subjecting her to cruelty for non-fulfilment of the same. And after filing the divorce petition, the respondent lodged the F.I.R. on 08.03.2005. A period of more than 17 years has lapsed, there is irretrievable breakdown of marriage between the two. Admittedly, the criminal proceedings and maintenance proceedings are also pending between the parties and the relations between the parties have become so strained after the criminal case registered against the appellant that matrimonial bond between the parties is beyond control as no co-habitation took place between the parties during 17 years. The marriage has totally ceased to be effective and is nothing
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but a source of misery amounting to mental cruelty to appellant.
22. Hon'ble Apex Court in Civil Appeal Nos. 4984-4985 of 2021 arising out of SLP (C) Nos. 17505-17506 of 2019 (Sivasankaran Vs. Santhimeenal) LL 2021 SC 448 held that the repeated filing of cases and complaint against a spouse can amount cruelty for granting divorce.
23. In our considered opinion, it would be just to accept the pragmatic reality of life and to take the decision to dissolve the marriage on ground of cruelty.
24. From the upshot of the above analysis, the impugned judgement dated 21.08.2020 and decree dated 01.09.2020, passed by the Additional Principal Judge / Family Court, Agra in Suit No. 25 of 2005 and 48 of 2007 (Rajesh Vs. Smt. Neelam), which is based on surmises and junctures needs interference and the same is liable to be set aside.
25. This appeal is accordingly allowed. The impugned judgment dated 21.08.2020 and decree dated 01.09.2020 passed by Court below are set aside and the Suit No. 25 of 2005 and 48 of 2007 (Rajesh Vs. Smt. Neelam) is decreed. Fresh decree be drawn.
26. Record be sent back to the court concerned forthwith.
Order Date :- 17.09.2021 Rameez