Court: Allahabad High Court
Bench: JUSTICE Pramod Kumar Srivastava
Manish Gautam Vs. Shikha Gautam On 30 March 2016
Law Point:
Hindu Marriage Act, 1955 — Sections 13(1)(ia), (ib) — Cruelty — Desertion — Parties living separately — Relationship of parties deteriorated — No possibility of reconciliation — Sufficient ground for divorce — Parties living separately for long time — Relationship deteriorated to extent that there is no possibility of any reconciliation — No possibility of any harmonious conjugal relations or living together as husband and wife and discharging matrimonial duties — Appellant-husband waited for sufficiently long time for improvement in relationship and filed petition under Section 9 of H.M. Act — Having found no hope, he filed suit for divorce — Mediation proceedings between parties failed — Sufficient ground for appellant-husband to get relief of divorce.
JUDGEMENT
1. Heard learned Counsel for the parties and perused the records. During arguments it is found that on the basis of available records, matter may be decided at this stage. Therefore it is accordingly decided.
2. Original suit No. 214/2008, Manish Gautam v. Smt. Shikha Gautam was filed for the relief of divorce under Section 13 of Hindu Marriage Act. The plaint case in brief was that after the marriage of parties on 31.1.2005, opposite party Smt. Shikha came in house of petitioner, but she was not satisfied with this marriage and her behaviour was bad. She had been abusing and humiliating the petitioner and his family members. She stayed only for one week and left house of the petitioner. Then again she visited the house of the petitioner in February 2005 and left his house in same month. During this period, she has been misbehaving, threatening and treating the petitioner and his family members with cruelty. In spite of repeated request of the petitioner, the opposite party-wife had refused to live with him and even filed criminal case for offences of cruelty for demand of dowry and unnatural lust against the petitioner for offences punishable under Sections 498A, 323, 504, 506, 377, IPC and 3/4, D.P. Act. Due to cruel behaviour and wild allegation of opposite party-wife, the petitioner had suffered unbearable mental trouble and agony. Because of criminal case instituted by opposite party-wife, the petitioner and his parents were arrested and detained in jail. Due to this they were defamed. O.P.-wife left petitioner’s house without any sufficient reason. Therefore, petitioner had filed petition for divorce on the ground of cruelty and desertion.
3. In written-statement filed in Trial Court, O.P.-Smt. Shikha had admitted her marriage with petitioner and pleaded that petitioner and his family members had been treating her with physical and mental cruelty. The petitioner had tortured her by unnatural intercourse, by beating her and by demanding dowry. The petitioner had evicted her from his house in the year 2008 and had filed suit for divorce on incorrect facts; therefore, petition is liable to be dismissed.
4. After framing issues and accepting evidences of the parties, the Additional Civil Judge (S.D.) Court No. 2, Mathura had dismissed the divorce petition. The Trial Court had given finding that although it is admitted that petitioner and his parents had to be confined in jail due to criminal case filed by opposite party-wife, but said criminal case has not been decided, therefore, it cannot be accepted that such criminal case was unfounded. The Trial Court also held that if criminal case of O.P.-wife will be proved then it will be proof of fact that petitioner had been treating her with cruelty. Learned Civil Judge has also gave finding that petitioner had failed to prove that his wife-O.P. has deserted her in year 2005. Inter alia, on these main findings, the Trial Court had dismissed the original suit.
5. Aggrieved by the judgment of Trial Court, Civil Appeal No. 128/2011, Manish Gautam v. Smt. Shikha Gautam was preferred which was heard and dismissed by the judgment dated 26.11.2012 of Additional District Judge, Court No.-11, Mathura. Lower Appellate Court had held in this judgment that petitioner-appellant had failed to prove that he had been willing to keep his wife with him or that respondent wife had declined to accept him as husband. Lower Appellate Court had discussed the institution of earlier another suit which was filed by petitioner in the year 2007 for restitution of conjugal rights, but was withdrawn on 24.5.2008. The lower Appellate Court had treated this act of petitioner-appellant as proof of mala fide on his part of. In this judgment, lower Appellate Court had also considered the pendency of criminal proceedings initiated by respondent against appellant but had not accepted it as cruelty in spite of the fact that appellant and his parents had been detained in jail in this case. With these findings, first Appellate Court had confirmed the finding of Trial Court and dismissed the first appeal.
6. Aggrieved by the judgment of Trial Court, as well as of the first Appellate Court, present second appeal has been preferred by petitioner of the original case.
7. Learned Counsel for the petitioner-appellant contended that petitioner and his parents were detained in jail due to criminal case filed against them by respondent-wife. Apart from it she has been casting wild allegations against petitioner and his family members which amount to cruelty. He also contended that lower Court had wrongly shifted burden of proving the fact that respondent was not living with petitioner, because negative facts cannot be proved. He contended that it is the respondent-wife who has been alleging she had been living with petitioner-appellant from year 2005 to 2008. Therefore the burden of proving these facts were on her and in absence of any such evidence, the plea of desertion and living separately should have been accepted by lower Courts. In these circumstances judgment of lower Courts are erroneous and appeal should be allowed.
8. The arguments of appellant side were refuted by learned Counsel for the respondent who contended that there has been specific finding of fact that no cruelty has been committed by respondent-wife against the petitioner or his family members. He further contended that criminal case was lodged on correct facts. In criminal proceedings, the charge has been framed and proceedings are going on; therefore at this stage it cannot be said that those proceedings were initiated without any basis. He also contended that respondent-wife is still willing to live with petitioner and it is the petitioner who has deserted her, therefore appeal should be dismissed.
9. The original petition of divorce was filed on two grounds. The first was desertion and second was cruelty. So far as the first point of desertion is concerned, it is admitted fact that petitioner-appellant had filed original suit No. 238/2007 against his wife-respondent under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. During pendency of said proceedings, he withdrew this case and in its place instituted another original suit No. 214/2008 for divorce under Section 13 of the Hindu Marriage Act. There has been no finding of any of the lower Court that during pendency of original suit No. 238/2007 for restitution of conjugal rights, the parties were living together. In said suit No. 238/2007, it was pleaded that O.P.-wife is living separately for more than a year. Thus the subsequent suit No. 214 of 2008 for divorce was filed after about one year of institution of original suit No. 238/2007.
10. There has been specific pleading and evidence adduced by the petitioner-husband that his wife-respondent lived together only for about two weeks till February, 2005. There is no evidence on record that parties had lived together after February 2005. It was the O.P.-respondent (wife) who had pleaded that she had been living together with her husband from the time of marriage till 2008. But there is no evidence or proof of it.
11. Section 101 of Indian Evidence Act provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist and burden of proof lies on him. In this matter, the petitioner husband had not asserted any fact of living togetherness. The plea of living together was taken by respondent-wife therefore the burden of proof of this fact was on her.
12. Section 102 of Indian Evidence Act provides that the burden of proof lies on the person who would fail if no evidence is adduced by either side. This particular point and plea of living together was taken by the respondent-wife therefore in absence of any evidence or proof, her plea would fail on this point. But these points were not considered by the lower Courts. The petitioner-appellant was not expected to prove the non-existence of fact relating to living together. It is clear that lower Courts had committed clear illegality when they have given finding to the effect that in absence of any evidence of living togetherness case of petitioner about desertion would fail. The averment of respondent regarding living togetherness of parties was not proved. The differences between the parties from the beginning and their living separately is admitted fact, but there is no evidence that respondent was expelled from house of appellant or that she is residing separately for any sufficient reason. This proves the ground of desertion as required under Section 13 of Hindu Marriage Act.
13. Apart from it, propriety of the things in matrimonial dispute should also be considered. In present matter, according to the petitioner parties are living separately after February 2005 and according to respondent-wife they are living separately since 2008. Thus, admittedly parties are living separately for many years. Admittedly during this period, respondent had not only levelled wild allegations of cruelty and immoral sexual activities but also initiated criminal proceedings due to which petitioner and his parents were detained in jail. Admittedly, said criminal proceedings is still continuing and being prosecuted by respondent. Mediation proceedings between parties has also failed. These facts make it explicitly clear that there appears no chance of reconciliation between the parties who have developed feelings of ill-will, hatred, antagonism and animosity; and the respondent is prosecuting the criminal case for conviction and incarceration of appellant and his parents.
14. So far as another plea of cruelty in present matter is concerned, it has been not proved till now that petitioner had treated the respondent-wife with cruelty or had committed unnatural sexual activities with her as pleaded in written-statement. The burden of proving these facts lies on the person who has asserted these facts, that is, respondent-wife, but these facts could not be proved till now. Levelling wild allegation and prosecuting proceedings for conviction of husband as well in-laws for sending them in jail amounts to cruelty.
15. The word ‘Cruelty’ has not been defined anywhere in the Act. The word appears to have been used in the section in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ‘cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of them have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively. The allegation of having unnatural sexual behaviour, dowry demand and physical torture made by the appellant wife against the appellant husband in her written statement, is nothing but mental cruelty of such a nature that appellant husband cannot be reasonably asked to live with the wife. The allegation of wild nature, as stated above, constitutes grave assault on the character, honour and reputation of husband. Such allegations amounts to cruelty entitling the petitioner to a decree of divorce. It cannot be doubted that the appellant-husband must have suffered traumatic experience because of the arrest and confinement in prison of his father, mother and himself. The arrest and imprisonment must have resulted in the loss of reputation and prestige of the husband and his family in the society. The mental agony of being arrested and imprisonment in a false case resulting into loss of reputation and prestige in the society would also amount to cruelty.
16. In V. Bhagat v. D. Bhagat, II (1993) DMC 568 (SC)=1993 (SLT Soft) 358=(1994) 1 SCC 337, the Apex Court had held:
“Mental cruelty in Section 13(1)(i-a) 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 conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. 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.”
17. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, I (2003) DMC 685 (SC)=III (2003) SLT 227=(2003) 6 SCC 334. the Apex Court had held as under:
“7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court……….
8. The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife to live in matrimonial home any longer with the husband………….
11. That apart, in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. …..A conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement.”
18. Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular strata of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonised feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.
19. In present matter living separately of the parties for long time, prosecution and incarceration in criminal case of appellant, the agony and humiliation suffered, charging him with wild allegations and others family members and still facing prosecution for conviction amounts to cruelty to appellant.
20. On the basis of above discussion and considering the facts and circumstances of this matter, it appears that relationship of parties had been deteriorated to the extent that there is no possibility of any reconciliation. Their relationship have reached to the point from where there appears no possibility of any harmonious conjugal relations or their being living together as husband and wife and discharging matrimonial duties.
21. It would mean that apart from other problems that had come in their way, the main problem is the failure on his part of sexual or matrimonial life. It would be seen that the appellant had not immediately rushed to sever his marital relations with the respondent. He had sufficiently waited for long time to see whether there would be any improvement in the relations with respondent and for the same reason he had filed petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights. Having found no hope, he chose to file suit for divorce. Even the mediation proceedings between the parties have failed. Therefore, it could safely be concluded that the appellant having tried all means to sustain the marital relations but having found that it was impossible for the respondent to gain such relationship, he had chosen to live apart from the respondent by moving petition for divorce. Therefore, there was sufficient ground for the husband-appellant to get relief of divorce.
22. In addition to legal errors as discussed above, the two lower Courts have not considered these important material point at the time of deciding the matrimonial disputes, which is amounts to infirmity and perversity in their judgments. I am convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. In light guidelines laid down by Apex Court in Satish Sitole v. Ganga, II (2008) DMC 167 (SC)=VI (2008) SLT 289=(2008) 7 SCC 734. I am of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty. This contention of appellant’s side is not unacceptable that the appellant’s marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very hard and unjust. Therefore said impugned judgments being erroneous are liable to be set aside. Considering these facts, circumstances, the factum of living separately for many years and no possibility of any reconciliation, harmonious conjugal relations or future congenial conjugal relations, it appears appropriate that when it has not been possible for the parties to live together and to discharge their marital obligations towards each other for many years, then their is no reason to continue their agony. Therefore on the basis of the foregoing discussion, the decree for dissolution of marriage should be granted on the ground of desertion and mental cruelty.
23. Accordingly the appeal is allowed. The impugned judgments dated 26.11.2012 and 7.9.2011 of the lower Courts are set aside and matrimonial original suit No. 214/2008, Manish Gautam v. Smt. Shikha Gautam, for the divorce of parties is decreed. The decree of divorce is granted, and it is directed that the marriage between the parties shall stand dissolved.
24. In the facts of the case, the parties shall bear their own costs.
DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.
You may contact me for consultation or advice by visiting Contact Us
Leave A Comment