Court: Gauhati High Court
Bench: JUSTICE T. Vaiphei, ACJ. & Rumi Kumari Phukan
Diganta Deka Vs. Upama Deka On 02 February 2016
Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Grant of divorce — Respondent-wife left her matrimonial home at her own volition without consent and intimation to appellant-husband — She did not opt to reside with other family members of appellant — Respondent by her forceful conduct compelled appellant to live with her — Such type of attitude not at all conducive for a matrimonial life — Long separation between parties — No scope to revive relation as appellant refused for re-conciliation even after advice by this Court — Alleged offer by respondent-wife to live with her husband was not genuine move but hollow expression bereft of any sincerity — Appellant entitled to decree of divorce.
JUDGEMENT
1. Heard Mr. J.I. Borbhuiya, learned Counsel for the appellant and also Mr. S.C. Biswas, learned Counsel for the respondent.
2. This appeal under Section 28 of the Hindu Marriage Act, 1955 is directed against the Judgment and Order dated 3.5.2014 passed by the learned District Judge, Nalbari in T.S. (D) No. 2/2010 under Section 13 of the Hindu Marriage Act, 1955, whereby the learned District Judge has dismissed the suit filed by the appellant.
Case of the Appellant:
3. The appellant got married with the respondent/wife on 3.2.2006 at Niz-Namati under Nalbari District in accordance with Hindu Law as they governed by the Hindu Law and are having a minor son born on 5.2.2008. It is submitted that the respondent-wife desired to live separately only with the husband leaving the family members of the husband. The appellant being a Central Government employee was working as a Constable under SSB and was posted at Chhattisgarh and as there was no any suitable provision provided to keep family at working place, being offended respondent left her matrimonial home at Nalbari, she being stubboned in nature. She filed a case before Judicial Magistrate, Nalbari vide C.R. Case No. 19/2009 under Section 498(A), I.P.C. on fictitious ground against the family members of the appellant in absence of the appellant. However, the said case was compromised in the terms of settlement as desired by the respondent that the respondent would stay separately in her parental house and the appellant will also stay with her as and when he would come home from service place. The appellant being peace loving person tried his best to lead the family life smoothly considering the fate of the minor son. In the meantime the appellant was transferred to Lucknow and he arranged family accommodation but the respondent/wife was reluctant to come to his new place of posting at Lucknow and in spite of all endeavour, he failed to bring her and/or to take her to his new place of posting at Lucknow. Accordingly, the appellant was compelled to issue a notice dated 9.12.2009 through his Counsel requesting her to come to join him at Lucknow which was duly received by the respondent/wife but instead of joining him at new place of posting she filed a maintenance case under Section 125, Cr.P.C. before the learned Chief Judicial Magistrate, Nalbari vide Misc. Case No. 87/2009 and, accordingly, the petition was allowed and the learned Court of Judicial Magistrate, Nalbari vide judgment and order dated 24.2.2010 was pleased to grant maintenance amount of Rs. 4,000 per month to the respondent/wife and her minor son and as on date the appellant has been paying the maintenance to the respondent/wife regularly. Finding no alternative, the appellant was compelled to file a suit for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 before learned District Judge, Nalbari vide Title Suit (D) No. 2/2010.
Stand of the Respondent:
4. In reply to the divorce petition denying all the averments made by the appellant, the respondent has stated that soon after the marriage, the family members of the appellant used to torture her as she could not bring cash amount from her family as dowry and the properties given in the marriage are of inferior quality, knowing fully well that the financial condition of the respondent family is not sound. On 7.1.2009, in the morning all the family members of the appellant drove away the respondent from her matrimonial home by torturing her and by keeping their 11 months old baby for which she is residing in her parental house. Though the appellant was informed by the respondent all about the affairs, but he did not pay heed to her rather threatened her. Hence, the respondent filed a Criminal Case against the appellant’s family, which however, was compromised as the appellant agreed to live separately with the respondent in her parental house. It is stated that she has to file a petition before the Court vide Maintenance Case No. 87M/2009 wherein the appellant is now paying maintenance. The respondent admitted about the pleader’s notice sent to her but she made no reply to the same. She has prayed for dismissal of the present petition.
Decision of the District Judge:
5. Upon the pleadings of the parties, the Trial Court framed the following issues:
(i) Whether there is any cause of action for the suit?
(ii) Whether the respondent subjected the petitioner to cruelty?
(iii) Whether the petitioner is entitled to get a decree of divorce as prayed for?
(iv) To what relief parties are entitled to?
6. The Issue No. (i) is answered in affirmative and in favour of the petitioner, however, remaining issues are decided against the appellant. Hence the appellant is before us.
7. Drawing our attention to the pleadings and evidence between the parties, learned Counsel for the appellant, Mr. J.I. Borbhuiya has submitted that the learned Court has failed to appreciate the evidence adduced by the appellant in proper perspective of law. It has also been pointed out that there is much deviation on the part of the respondent in her evidence from that of her pleadings as to under what circumstances, she had to leave her matrimonial home and as to why she did not respond to the notice sent by the appellant, urging her to join to the marital tie. The learned Court has also failed to take note of all the relevant facts and circumstances which has resulted the long separation between the parties and the evidence of both the parties not discussed, nor appreciated, it contends.
8. Refuting the argument of the learned Counsel for the appellant, it has been vehemently argued by the learned Counsel for the respondent, Mr. S.C. Biswas that there is no infirmity in the judgment assailed. It has also been urged that merely because the respondent did rot reply to the pleader’s notice sent by the appellant, no adverse inference can be drawn as against the respondent. As the appellant could have address a letter to her but instead he had issued a legal notice to his wife which is not at all desirable. As the respondent was compelled to leave the matrimonial house, she is not supposed to return to her matrimonial house simply on the basis of the legal notice, it contends. It has also been urged that the respondent is still ready to consume marital life and the prayer for divorce is made on false allegations.
9. We have given our anxious consideration to the rival contentions of both the parties and have gone through the pleadings as well as the evidence of the parties, and the impugned judgment. The crucial issue before the Court pertaining to the Issue No. (ii) as to whether petitioner has been able to prove the cruelty under Section 13 of the Hindu Marriage Act. The learned Court below has arrived at a finding that the petitioner is not entitled to a decree of divorce on the ground that it was the appellant who treated the respondent/wife with cruelty. It appears that the learned Court while discussing the said Issue No. (ii) has not appreciated all the evidence on record and has confined to the evidence of appellant and the respondent, which is a serious infirmity. As the decision of cruelty is the crux of the matter, so the Court has to discuss all the facts and circumstances in the light of all evidence brought on record bearing in mind the pleadings between the parties.
10. Having regard to the pleadings between the parties and the evidence on record, it appears in this case that only issue raised by the appellant is that the respondent was not agreeable to live in the matrimonial house rather she want to go with the appellant to the place of posting, to which, however, appellant could not agreed at that point of time due to the prevailing serious law and order situation created by extremist organizations at this place of posting Chhattisgarh. Ultimately, the respondent left the matrimonial house as on 7.1.2009 and since then, they are living separately. As per version of the appellant, the respondent in his absence by getting quarrel with his family members has left his house as on 7.1.2009 leaving the 11 months old child behind and it is the case of the respondent she has been ousted by the family members of the appellant on 7.1.2009 by assaulting her, keeping the child, for which she has to take shelter in her parental house. It is the submission of the respondent that though she informed the matter to her husband/appellant but he did not response. The learned Court has accepted the evidence of the respondent as stated by her, without being appreciated other facts and circumstances and evidence on record, which has necessitated us to reappreciate the evidence on record.
11. After careful scrutiny of the pleadings and evidence on record, it is an admitted position that raising allegation of cruelty, that the respondent was subjected to torture by the appellant and his family members for not bringing adequate dowry and ultimately she was ousted from their house as on 7.1.2009, the respondent resides separately in her parental house. Whereas, it is the stand of the appellant that by insisting that she should be taken to the place of posting, the respondent used to quarrel with him and ultimately, while in his absence, the respondent herself left the house of the appellant after quarrelling with the family members of the appellant. The appellant as PW-1 has clarified that due to the extremist activities while he was posted at Chhattisgarh and for having no accommodation, he being a Constable, he was unable to take her to the place of posting. But however, later on while he was transferred to Lucknow, he after getting accommodation decided to take the respondent to him for which he also sent a legal notice, but the respondent did not response to the same. Ultimately, they have resided long separation since 2009 onwards. On the other hand, the submission of the respondent that she was not supposed to response to such legal notice as the respondent himself has not wrote a letter to her, is of little consequence, in view of their strained relationship prevailing since few years.
12. On the next, to substantiate the allegation by the respondent that she has been tortured by the appellant and his family members, except the vague allegations, there is no requisite evidence as required in law to prove the same. The learned Court below has not discussed all this aspect at all. Firstly, the respondent though has stated that she was subjected to cruelty but to utter surprise she has not mentioned any time, date and manner of torture stated to have inflicted upon her by the appellant and his family members. Since the marriage in the year 2006, till the date of their separation 2009, no any single instance has been mentioned as to the manner of torture, which may indicate the cruelty. Such a vague statement of the respondent cannot be accepted in law as well as fact and her own witnesses i.e. DW-2, Mukunda Das; DW-3, Krishna Thakuria and DW- 4, Ajit Haloi could not highlight any instance so as to prove the matter of torture, nor they have seen any sort of torture upon the respondent by the appellant and his family members.
13. On the other hand, the evidence of the appellant (PW-1 is the appellant) himself and the PW-2, Smti Bijuli Deka (sister-in-law of the respondent), PW-3 Smt. Rina Deka and PW-4 Shri Omio Deka (both are neighbours) have deposed that the respondent herself left the house of the appellant in the absence of the appellant at her own volition keeping the child behind. It has also be divulged from their evidence that the respondent already insisted to stay separately from the family of the appellant and demanded to take her to the place of posting of the appellant but the appellant cannot conceded to the demand because of prevailing extremist activities in his place of posting at Chhattisgarh, nor he got suitable accommodation. It is to be noted that as against the plea of torture upon the respondent, no any suggestion was given to the vital witnesses i.e., PW -1/appellant and PW-2/sister-in-law about the torture on the allegation of dowry. Thus it is an admitted position that the respondent failed to substantiate the plea of torture upon her by the appellant and his family members. Raising of vague plea of torture is not enough unless substantiated the same.
14. In this context, we may now discuss the claim of the appellant that for his inability to fulfil the demand of the respondent about separate accommodation, the respondent left her matrimonial house at her own will. In this respect, the evidences of appellant (PW-1 to PW-4) are clear and convincinq that the respondent was not agreeable to reside in the matrimonial house and she was forcing the appellant to take her to the place of posting of the appellant, which cannot be fulfilled by the appellant because of extremist activities in the place of posting. It has also been brought on evidence that on fateful date i.e. on 7.1.2009 being dissatisfied with the above aspect, the respondent left the matrimonial house in spite of resistance made by the PW- 2, who was present at that relevant point of time, by biting the hand of the PW-2. On the other hand, the plea of the respondent that on 7.1.2009, she was ousted by the family members of the appellant by assaulting is itself not convincing in absence of any other reason shown as to why she was assaulted on that very particular day, coupled with the fact that there is no proof of earlier torture upon her. No any medical document, etc. produce to prove the matter of assault.
15. As a corollary of the findings, it could be held that the respondent has left the house of the appellant at her own volition without the consent and intimation to the appellant merely on the ground that she did not opt to reside in the matrimonial house along with other family members of the appellant and she choose only to reside with the appellant which was not possible at that relevant point of time. Now, she try to resist the claim of the appellant by blaming the appellant and his family members on some frivolous ground, which is not proved.
16. Further the conduct of the respondent who immediately filed a criminal case against the appellant and all the family members which at all not conducive towards a matrimonial affairs. It is also noted that the respondent agreed to compromise the said criminal case only on the ground that she will live separately in her parental house not in her matrimonial house, which also reveals her adamant attitude not to respect the sentiment of the appellant and his family members and they are deprived of the love of affection towards the little child of the appellant. Further it can be noted that while the appellant was agreeable at the subsequent stage to take the respondent to his new place of posting after getting proper accommodation, which he informed the respondent by way of legal notice, but the respondent refused to response to the same. The respondent resorted to falsehood in respect of receipt of such notice, which reveals her attitude as well. Though in her written statement she has admitted about the receipt of the legal notice but in course of evidence, she has denied the receipt of same.
17. From all such score, no implicit reliance can be placed upon such twisted testimony of the respondent. No man of having self respect will choose to stay in his in-laws house at his choice while he has own family house. The respondent by her forceful conduct has compelled the appellant to live with her and such type of attitude is not at all conducive for a matrimonial life. In the long run, the appellant is not expected to endure the unjustified and unreasonable demand of the respondent and he is not supposed to live his life at the behest of his wife on unfounded allegation. To run a healthy marital life, there must be a good adjustment of all affairs in life, mutual love and affection towards each other, respect to elderly people of the in-laws and these are the edifice of conjugal life.
18. The learned Counsel for the appellant has relied upon a decision so rendered by the Hon’ble Apex Court reported in II (2005) DMC 453 (SC)=VI (2005) SLT 373=(2005) 7 SCC 353 in the case of Durga Prasanna Tripathi v. Arundhati Tripathi, wherein it has been held that divorce on the ground of cruelty and desertion where the husband is not agreeing to the proposal of wife to live separately from his family and where the parties are living separately for almost 14 years, the marriage is stated to be irretrievably broken down and the divorce is stated to be rightly granted by the Family Court. It has been urged that the facts and circumstances in the present case being squarely covered by the aforesaid decision, the appellant is entitled to get divorce.
19. The Hon’ble Apex Court in a series of cases Reference—II (2010) DMC 706 (SC)=VII (2010) SLT 282=AIR 2011 SC 114, Gurbux Singh v. Harminder Kaur; I (2013) DMC 458 (SC)=II (2013) SLT 338=AIR 2013 SC 2176, Srinivas Rao v. D.A. Deepa and II (2014) DMC 483 (SC)=V (2014) SLT 675=210 (2014) DLT 733 (SC)=AIR 2014 SC 2881, Malathi Ravi v. B.V. Ravi, has given certain guidelines as to what may constitute cruelty, some of which are reproduced below:
“(i) On consideration of complete matrimonial life for parties, acute mental pain and agony and suffering as would not make possible for the parties to live with each other would come within the parameter of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it would becomes abundantly clear that the situation is such that the wronged party cannot reasonably be asked to put up such conduct and continue to live with other party.
(iii) Mere coldness of lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that makes the married life for the other spouse absolutely intolerant.
(iv) Mental cruelty is a state of mind. The feeling deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) Sustained reprehensible conduct, indifference or total departure from normal standard of conjugal kindness causing injury to mental health or depriving sadistic pleasure can also amount to cruelty.
(vi) Where there has been a long period of continuous separation, it may fairly be concluded that marital bond is beyond repair. The marriage becomes a fiction so supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feeling and emotions of the parties. In such like situation, it may lead to mental cruelty.”
20. Having regard to the above proposition of law as pronounced by the highest Court of the land, we may held that in the present case all conduct of the respondent as has been discussed above amounts to cruelty. In view of long separation between the parties, there is no other scope to revive the relation as the appellant refused for re-conciliation as even after advice by this Court. It appears that all attempts made by the appellant to persuade the respondent to come home and live with him had failed for which, ultimately the appellant filed the petition for divorce on the ground of cruelty. The alleged offer by the respondent/wife to live with her husband was not a genuine move but merely a hollow expression bereft of any sincerity.
21. The appellant is accordingly entitled to get a decree of divorce. The submission of the learned Counsel for the respondent as about permanent alimony in case of divorce can only be invoked on filing of such requisite application as mandated under Section 25 of the Hindu Marriage Act in proper Forum, which we accordingly advise.
22. The appeal is allowed. The impugned order dated 3.5.2014 passed by the learned District Judge, Nalbari in T.S. (D) No. 2/2010 under Section 13 of the Hindu Marriage Act, 1955 is hereby set aside. The marriage between the parties is hereby dissolved by way of divorce. Prepare a decree accordingly. Return the LCR along with the copy of this Judgment and Order.
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