Court: Himachal Pradesh High Court
Bench: JUSTICE Dev Darshan Sud
Mamta Devi Vs. Dinesh Kumar Decided on 14 June 2012
Law Point:
Wife has been withdrawing from the company of her husband without any justifiable cause — Animus deserendi proved.
JUDGEMENT
1. This appeal has been preferred by the wife who was the respondent (before the Trial Court) against the judgment and decree of the learned Additional District Judge-(I), Kangra at Dharamshala, granting a decree of divorce to the husband, respondent herein, (who was the petitioner before the learned Trial Court) on the ground of cruelty and desertion under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’).
2. The undisputed facts are that the petitioner instituted a petition under Section 13(1)(ia) of the Act, pleading that the marriage between the parties to the petition was solemnized on 16.4.2000 in village Gangath in accordance with Hindu religion, rites and customs. After solemnization of marriage both the parties resided together for sometime and one female child Neha was born from this wedlock. It is unfortunate that the child was not normal and suffers from epilepsy. It was the pleading of the husband that he resided with his wife for about one year when her conduct and behaviour was normal. On 2.2.2001, she went to visit her parents in Gangath for about two days and when he went to bring her to the matrimonial home, her parents refused to send her on the pretext that she will stay with them for another 15 days. On 19.2.2001, he again visited his in-laws and at that time he was accompanied by his father when a quarrel ensued between them and his in-laws and she was sent back on the next day. On 4.5.2001, Aditi, sister-in-law of the wife visited her and went back to Dari. This was followed by another fracas. On 5.5.2001 when this Aditi contacted her father on telephone, then on the next morning parents, brother and relatives of the wife came to the house of the husband where an ungainly quarrel ensued between them for about 6 hours from 10.00 a.m. to 4.00 p.m. on the pretext that they wanted to take the appellant back. Some kind of understanding was arrived at between them and she was allowed to go with her parents for about a month and at this point of time he also accompanied her and stayed there for about two days. However, when he returned home, he received a call from her brother threatening him with dire consequences. On 5.6.2001, he again went to his in-laws house in Gangath, but there, her parents, brothers and sisters quarrelled with him, refused to allow the appellant to accompany him to the matrimonial home and threatened him with dire consequences. Later on he filed complaint Ex. PW-1/A before the Women Police Cell at Dharamshala narrating his tale of woe and requesting for their intervention and assistance in the matter. In brief, the complaint narrates the entire sequence of events from 2.2.2001 till 11.8.2003 when this complaint was instituted. After this, the wife came to the matrimonial home and resided there about 13 months. Again, on 9.9.2004, she left without informing the petitioner and leaving behind her minor daughter. The pleading proceeds that the wife has taken away all her jewellery etc. The petitioner then accompanied by his relatives went to Gangath to his in-laws house and requested his wife to join his company, but she flatly refused to do so. At that time he was told that in case he visits again he would be killed. All this ultimately ended up in proceedings under Sections 498-A, 506 read with Section 34, IPC, which case was tried by the Additional Chief Judicial Magistrate, Nurpur, District Kangra as case No. 410/11/04, instituted on 4.11.2004, decided on 17.1.2006, in which the petitioner, his father and mother were the accused and which case ended in acquittal. The judgment is placed on the record as Ex. P-1. The appellant-wife did not deny the fact that their daughter Neha is residing with the respondent-husband, but she denied the other averments made stating that some compromise etc. had been entered into under pressure and that their daughter Neha was forcibly taken away for the reason that she (appellant) did not have adequate income and the husband was alleging that she was not possessed of sufficient funds to look after their daughter. Both the parties went to evidence and each examined three witnesses.
3. The petitioner has proved on record Ex. PW-l/A, which is the complaint filed by him in the Women Police Cell at Dharamshala enumerating his tale of woe. He chronically details the number of occasions on which his wife left his residence, quarrels which ensued with her thereafter, details of the occasions whenever he went to bring her back, the long periods of time which she used to remain absent from home without his consent. He requested that a thorough investigation be carried out. Petitioner-husband also relied upon the judgment of the Court of learned Additional Chief Judicial Magistrate, Nurpur, in case No. 410-11/04, titled: Dinesh Kumar and Others v. State, decided on 17.1.2006, wherein the Court holds that no case under Section 498A/506 read with Section 34, IPC has been proved. The appellant herein had appeared in that case as PW-1. The Court holds that there was no demand for dowry and that there might have been some quarrel between the parties but beyond that there was no evidence to show the involvement of the father and mother of the respondent in any offence as alleged. In the divorce petition, the learned Court on the evidence of the parties granted a decree for divorce dissolving the marriage between the parties.
4. I have heard learned Counsel for the parties and have gone through the record of the case.
5. Mr. Ajay Sharma, learned Counsel appearing for the appellant, urges that this is a case of normal matrimonial wear and tear where there might have been some quarrel and domestic friction between the husband and wife but these are normal incidents of life and cannot be considered under any circumstances to constitute acts of either physical or mental cruelty as contemplated by Section 13(1)(ia). He submits that Exs.D-1 to D-5, which have been proved on the record, clearly demonstrate and show that the appellant-wife had not been at fault, but it was the husband who was responsible for providing sufficient cause to the wife to withdraw from the matrimonial home. In these circumstances, there could be no question of desertion as animus deserendi was absent. In a nutshell his case is that situation(s) having been created by the husband, there was no option with the wife but to withdraw from the company of the husband. It is a case set up by the appellant, as urged by the learned Counsel, that the Courts below have misread and mis-appreciated the evidence and arrived at a conclusion which is not at all supported by overall documentary evidence on record. Learned Counsel then submits that filing of the criminal case cannot be construed as a circumstance against the wife as she was exercising her right under the law to seek redressal for the cruel acts to which she has been subjected. If the judgment ended up in acquittal, that fact per se could not mean that the wife had initiated false proceedings, as the prosecution of the case was the responsibility of the public prosecutor. He submits that if that be the case, (institution of the proceedings), proceedings for malicious prosecution could have been lodged by the husband and his parents against the wife and the other people involved.
6. Adverting to the last submission first, I cannot accede to the submissions that merely because no proceedings for malicious prosecutions have been filed, the appellant was acting in good faith on actionable evidence. Having dragged the entire family to Court in criminal proceedings, it cannot be said that mental cruelty is not proved. Surely, if this option (instituting proceedings for malicious prosecution) was to be resorted to by the husband and his family members, that would have been the conclusive point of no return. It could hardly be expected that parties who are fighting criminal/civil proceedings, interminably could be expected to live together under normal circumstances. True it was the State which was prosecuting the case but surely it was the evidence of the appellant which was vital. But, I will advert to this point at later part of the judgment.
7. On the first aspect that the evidence has been misread and misappreciated, I am not persuaded to hold that the learned Court below has committed this error. I need not reiterate the principle of law that a fact has to be proved within the meaning of Section 3 of the Evidence Act before it can be considered as having been established. In R.E.V. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Another, VI (2003) SLT 307=IV (2003) CLT 315 (SC)=(2003) 8 SCC 752, the Supreme Court holds that the standard of proof required for proving a fact both in civil and criminal proceedings is the same. The Court holds:
“28. Whether a civil or a criminal case, the anvil for testing of ‘proved’, ‘disproved’ and ‘not proved’, as defined in Section 3 of the Indian Evidence Act, 1872, is one and the same. A fact is said to be ‘proved’ when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evalution of the result drawn by applicability of the rule, which makes the difference. “The probative effects of evidence in civil and criminal cases are not however always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. BEST says: There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision : but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. (BEST, S. 95). While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt.” (See Sarkar on Evidence, 15th Edition, pp. 58-59). In the words of Denning, LJ (Bater v. B., 1950, 2 All ER 458, 459) “It is true that by our law there is a higher standard of proof in criminal cases then in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability.” Agreeing with this statement of law, Hodson, LJ said “Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.” (Hornal v. Neuberger Products Ltd., (1956)3 All ER 970 at p. 577 D)”.
(p. 767)
8-9. It is the evaluation of the evidence and the conclusion arrived at which makes the difference in civil/criminal cases. In civil cases it is by preponderance of probabilities and in criminal cases proof beyond reasonable doubt.
10. Adverting to the evidence on record, the learned Trial Court on the evidence of PW-1 Smt. Arunmitra, who was the Investigating Officer of the Women Police Cell, who proved Ex. PW-1/A and states that on 17.8.2003 she had called the parties including the wife and her relatives and asked her to join the company of her husband. She then states that the wife was reluctant but then ultimately she prevailed upon her and her family members. She proved on record compromise Ex. D-3, statement of father of the wife Ex. D-1 and statement of the petitioner Ex. D-4. Copy of the application Ex. D-2 moved by the petitioner and his father filed before her on 20.8.2003.
11. PW-2 Smt. Savita Karki, Pradhan, Gram Panchayat, Dari, states that an application had been filed before the Panchayat by the wife. She had visited the house of the husband where the wife had appeared in person. At that time she was accompanied by Ward Panch and they intervened to patch up matters between the parties. The wife was allowed to go to her parental house with her parents and compromise Ex. D-5 between the parties was reduced into writing. She admitted that on 11.7.2003 letter Ex. D-6 was addressed by Gram Panchayat, Dari to the Pradhan Gram Panchayat, Gangath.
12. Adverting to the evidence of the wife, the Court notes that Ex. P-1, copy of the judgment establishes the institution of the criminal case and the acquittal of the husband and his father therein. The wife also admitted that her daughter Neha was suffering from epilepsy and that she had been left with the husband. On the conspectus of entire evidence on record, one fact stands established that the wife has been leaving the matrimonial home resulting in intervention either by the Women Cell, Police or by the Panchayat, etc. It is also established that criminal prosecution was lodged against the respondent-husband and his parents by the wife which ultimately resulted in acquittal, with findings that the parents of the husband were never involved in any act alleged against them. No demand for dowry or harassment for dowry was proved by the evidence on record therein. It is no doubt true that every party is free to vindicate his/her right in a Court of Law, but at the same time the Criminal Justice System cannot be turned into a machinery for harassment or a torture rack to drag people into litigation without any justifiable cause. The submission that the petitioner-wife was trying to vindicate her right in the true spirit of law cannot be accepted for the reason that there is no evidence on the record to prove this fact.
13. In Naveen Kohli v. Neelu Kohli, I (2006) DMC 489 (SC)=III (2006) SLT 43=128 (2006) DLT 360 (SC)=II (2006) CLT 100 (SC)=(2006) 4 SCC 558, the Court holds:
“63………….
11 “The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the inquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or 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 (See Shobha Rani v. Madhukar Reddi, (1988)1 SCC 105).”
(p. 576)
14. In Smt. Kamlesh Kumari v. Shri Vinod Kumar, III (2011) DMC 673=2011 (2) Shim.LC 307, it is inter alia held that institution of false criminal proceedings constitute cruelty within the meaning of Section 13(1)(ia) of the Act. The Bombay High Court in AIR 2010 Bom. 16, held that mere institution of proceedings does not constitute cruelty which judgment has been considered in Kamiesh Kumari’s case.
15. In Mandeep Kaur v. Sukh Dev Singh, 2006 (1) Shim.LC 397, Hon’ble Deepak Gupta, J. inter alia holds that the institution of a case under Sections 498-A, 406 and 120B, IPC which resulted in the arrest of the husband and the wife and her father insisted that the accused be handcuffed by the police constitutes a sufficient cause for invoking cruelty as a ground for divorce. His Lordship then proceeds that:
“12…………………. It is well settled law that if a false case is filed by one spouse against another, it would amount to cruelty. It is also equally true that mere launching of a criminal proceeding by one spouse against the other is not an act of cruelty unless these allegations are shown to be false. Even the acquittal of one party in a case would not mean that the allegations are false. In criminal proceedings the guilt must proved beyond reasonable doubt since a person has to be sentenced for imprisonment and suffers penal consequences. In civil proceedings, on the other hand, it is preponderance of evidence which is relevant.”
16. In Shri Chand Prakash Sharma v. Smt. Kaushlya Devi, I (2008) DMC 176=(2008) 1 Shim.LC 198, I have held that non-cohabitation for long period and unsubstantiated complaints to superior officers constitutes cruelty within the meaning of the Act. I may also refer to the decision of the Andhra Pradesh High Court in Gajjala Shankar v. Anuradha, II (2006) DMC 36 (DB)=2006 (2) CCC 298 (AP) (DB), holding:
“10. In normal course, mere filing a case for the offence under Section 498A, IPC by itself may not be a ground sufficient to hold that the said act amounts to cruelty. But in the present case it has to be seen that the criminal case was lodged against not only the husband but also his parents and sister. As a result of which, the husband and other three people suffered imprisonment for sometime, initially. This would, naturally, prevail upon the social status of anybody, including the persons who are not really guilty of the said offence. As already noticed, in this case, the Court acquitted all the accused of the offence under Section 498A, IPC. The trauma and the sense of diffidence suffered by the husband as well as his parent and sister from the date of filing the criminal case till it ended in acquittal could easily be imagined.”
13. In Angalla Padmalatha’s case (supra), a Division Bench of this Court held that filing a complaint under Section 498A, IPC and also a petition for maintenance under Section 125, Cr.P.C. indicate the intention of the wife as the intention to abandon the matrimonial home permanently. In the instant case also, as already noticed, the wife had filed a criminal case against the husband and her in-laws, which was held to be noted proved by the Criminal Court and also filed a case of maintenance which appears to have been granted. These two facts basically prove the strong desire to the wife to be disassociated with the husband and the matrimonial home as a whole and these two circumstances would indicate that she had no real intention to lead happy marital life with the husband.”
(pp.299-300)
17. Learned Senior Counsel appearing for the respondent also places reliance on the Division Bench judgment of this Court in Smt. Upnesh Kumari v. Kamlesh Kumar, ILR 1995 (II) 117, holding that institution of false complaint(s) against the husband and his family members constitutes actionable cruelty. On the submissions made by learned Counsel appearing for the appellant that mere filing of the criminal complaint does not constitute cruelty, the case law on this point has already been considered by me.
18. In the context of the present case, adverting to the facts, I do not find any proved justification put forth by the wife in the criminal case, to prove the fact that what she was doing was actually vindicating her right. There is no material which in any manner suggests demand of dowry by the husband or his family members. No doubt as held, mere institution of case is not itself sufficient to establish cruelty but the justification has to be established on record that there is some justification to initiate such proceedings. I have not been able to decipher any from the judgment Ex. P-1 which has been placed on the record. This ground in itself is sufficient to constitute an act of cruelty within the meaning of Section 13(1)(ia) of the Act as constituting a ground for granting decree of divorce.
19. On the other submissions made by the learned Counsel appearing for the appellant that no desertion is proved on the record, I cannot persuade myself to hold that such an inference can be drawn from the evidence. It is established on the record that the wife does not care for her daughter who suffers from epilepsy. What can be said about a mother who abandons her child and does not care to enquire about the welfare of the child in her infancy especially when the child is afflicted with the disease? The case now sought to be urged before this Court is that she could not take custody of the child for the reason that she does not possess sufficient funds, is neither pleaded or proved nor established on the record. I do not find even an iota of evidence on the record to justify the withdrawal of the mother from the guardianship of a minor female child who should and ought reasonably be taken care of both by the father and the mother.
20. The other evidence as considered by me including that of the compromise as brought on the record pointedly proves one thing that after every round of so-called compromise the appellant is back to square one where another compromise follows, in quick succession in other words there is no intention to act on the so-called compromise but only to create evidence/material to show a semblance of compliance to the letter and spirit of the compromise.
21. Learned Counsel relies upon the decision of this Court in Harjeet Kaur v. Bhupinder Singh, II (2007) DMC 415=AIR 2007 HP 96, holding that where the wife repeatedly lives with her parents withdrawing from the company of her husband without any justifiable cause, desertion is established. To similar effect is the judgment of this Court in Mohan Singh v. Leela Devi, 2007 (1) Shim.LC 327.
22. I find from the record that there is ample evidence to establish that the wife has been withdrawing from the company of her husband without any justifiable cause. Animus deserendi stands proved. In the circumstances, this appeal is dismissed. No order as to costs.
Appeal dismissed.
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