Judgment - Divorce - Cruelty - Mental Cruelty By Wife

Court: Jharkhand High Court

Bench: JUSTICE Aparesh Kumar Singh, J. & Ratnaker Bhengra

Meenu Devi Vs. Amit Kumar On 12 March 2018

Law Point:
Hindu Marriage Act, 1955  Sections 13(1)(ia), (ib)  Mental Cruelty  Desertion – False implication in criminal case amounts to cruelty Absence of physical relationship for more than 7 years between parties. It is strange despite institution of case under Section 498A, IPC, appellant/wife insisted of residing in one of the rooms in same house of plaintiff-husband Criminal prosecution is false accusation against respondent-husband on part of appellant-wife Respondent has been acquitted in false criminal case instituted by appellant-wife under Section 498A, IPC.  No reason to disturb findings of Family Court.

JUDGEMENT

1. Heard learned Counsel for the parties.

2. The marriage between the parties stands dissolved by the impugned judgment dated 6th October, 2016 passed in Matrimonial (Divorce) Case No. 9 of 2011 by learned Principal Judge, Family Court, Godda at the instant of the plaintiff-husband. The aggrieved defendant wife is in appeal.

3. As per the case of the plaintiff, marriage took place in 2004 as per Hindu Rites and Custom. After ceremony of Gauna (second marriage), they led a normal conjugal life and twin baby was born. The husband soon realized her ill-tempered behaviour. She was not accustomed to the village life. Therefore, the plaintiff expressed his inability to adjust due to financial condition as he was unemployed. She along with her relatives made threat to the plaintiff, for which a Sanha was filed before Sub-Divisional Officer, Godda. She got further emboldened and started assaulting the plaintiff-husband. In 2007, she gave birth to twin baby, but one could not be saved. Allegations were made by her relatives against the plaintiff-husband. She indulged in abusing and threat to the plaintiff-husband. She is alleged to have deserted him for more than two years and did not have any cohabitation with the plaintiff-husband. She did not have any intention to resume her conjugal right. Plaintiff-husband complained of unsound mind of the defendant-wife as she was suffering from schizophrenia. The suit was instituted when she refused to resume cohabitation giving rise to cause of action in January, 2009. Plaintiff-husband prayed for dissolution of marriage on the ground of desertion, mental disorder, no resumption of cohabitation for more than 2 years and also complained that the marriage is practically and emotionally dead in view of perpetual source of tension, mental agony and cruelty inflicted by the defendant-wife. He sought dissolution of marriage and custody of a child.

4. Defendant-wife appeared and filed her written statement on 30th July, 2012. She denied all the allegations made by the plaintiff-husband. According to her, there has been no valid cause of action to seek divorce. She alleged that plaintiff-husband along with his mother, sister-in-law and nephew started torturing her. A demand of Rs. 5 lacs was made towards dowry and on her denial thereof, she was brutally assaulted. One of the child amongst twins born to her on 15th December, 2006 could not survive due to ill-treatment perpetrated by the husband. She contended that the husband has his own sufficient market complex of 10 rooms on main developed market of Pirojpur(Barahat) and about 6 bighas of land whose monthly income is Rs. 25,000 per month. The defendant used to come regularly to her in-laws house and also went to her parents, therefore, there was no question of abusing or threat. Plaintiff and his family members were demanding dowry and threatening to kill her. Therefore, the suit deserves to be dismissed as the plaintiff cannot be allowed to take advantage of his wrong.

5. On the basis of the pleadings of the parties, the learned Family Court framed the following issues:

“Whether the plaintiffs Amit Kumar is entitled for dissolution of his marriage under Section 13(1)(ia), (Ib) of the Hindu Marriage Act, 1955 on the ground of cruelty and desertion committed by the defendant Meenu Devi by passing the decree of divorce or not?”

6. Five witnesses were examined by the plaintiff while three witnesses were examined by the defendant including herself.

P.W.1, Rajnarayan Ram deposed about the ill-treatment perpetrated by the defendant-wife, as a result of which, a Sanha was instituted in the Court of Sub-Divisional Magistrate in 2007-08 by the plaintiff. He also stated that a false case was filed by the defendant against the plaintiff and his family members for demanding dowry. As per his statement, she is mentally handicapped and the plaintiff had stated to him that he had no physical relation with the defendant for six years. His house is just beside the house of plaintiff. He further deposed that the defendant used to often come and go. The property of the plaintiff is a joint property.

P.W.2, Rajiv Lochan claimed to know both the parties. He deposed in favour of the plaintiff’s case. According to him, one of the child amongst the twin died after birth. Defendant is short tempered in nature and used to threaten and abuse the plaintiff. He also deposed about lodging of Sanha in the Court of Sub-Divisional Magistrate. He also deposed that the plaintiff had no cohabitation with his wife since last 6 years. This witness was discharged as no one had appeared for the defendant to cross-examine.

P.W.3, Rajendra Mandal also claimed to know both the parties and deposed in similar fashion in support of the case of the plaintiff. He also stated that the plaintiff had no physical relationship with the defendant since last 6 years. Daughter of the plaintiff is studying in parental house of the defendant.

P.W.4, Nagendra Prasad Yadav stated, in his deposition, that after the marriage of the parties in 2004, out of the twin child born, one died. The family of the defendant had made allegations that one child died due to non-care being given by the plaintiff. He further deposed that defendant is short tempered in nature and used to threaten and abuse the plaintiff. He also stated that the plaintiff had no physical relationship with the defendant since last 6 years. In his cross-examination, he stated that plaintiff is his friend since 30 years. The house of this witness is 3 kilometres far from the house of the plaintiff. Plaintiff was unemployed. He further deposed, in his cross-examination, that defendant had filed a case under Section 498A of the Indian Penal Code, but the plaintiff had not demanded any dowry.

P.W.5, Amit Kumar also supported the plaintiff’s case in similar fashion and stated that plaintiff had no physical relationship since 2009. He also stated about the institution of a case under Section 498A of the Indian Penal Code against the plaintiff.

Defendant examined herself as D.W.-1. She alleged that she was tortured physically and mentally on demand of cash of Rs. 5 lakh. Therefore, the plaintiff had filed a false case. She had been living in one room in Pirojpur at her matrimonial home. She used to undergo treatment at her parental home and whenever she demanded cost of the same, plaintiff used to assault her. She has a daughter, Neha born out of the wedlock, but no maintenance was given by the plaintiff. There is no other arrangement in the same village. He was also prohibiting her to make Pairvi in this case. She required maintenance and support for education of her daughter. Plaintiff had got one house consisting of 10 rooms which is on rent, he had also got six bighas of land from which income of Rs. 45,000 is received. She was ready to live with her husband, if he treats her well. Plaintiff-husband was making physical relationship with her. In her cross-examination, she denied having separated from her matrimonial house. At present, she is living at Barahat in her husband’s house and her husband is also living in the same house. Physical relationship between the parties had not been stopped. She accepted that she had filed a case under Section 498A of the Indian Penal Code and since then, their relationship became worst. At present, relationship is good. Plaintiff had always tried to confine her in a close room.

D.W.2, Manmohan Jee had also deposed about the demand of cash of Rs. 5 lakh and thereafter lodging of the present civil suit as a retaliation by the plaintiff. He further deposed about rebuke by the plaintiff for the cost being demanded for her treatment. He also deposed about one room being provided by the plaintiff in the same house, as there was no other arrangement. She has been confined in a close room forcibly and prevented from making Pairvi. There was a need for support and maintenance for her daughter’s education. Plaintiff had got one house consisting of 10 rooms and six bighas of land from which, Rs. 45,000 comes as monthly income. Defendant was ready to live with her husband if he treats her well. The behaviour of plaintiff was not good. He denied the suggestion that plaintiff had got no relationship with the defendant since 2009, therefore, defendant did not become pregnant.

D.W.3, Gagan Kumar had also deposed in favour of defendant’s case about the demand of dowry made for maintenance of her daughter and that there is no arrangement in the village, which compelled her to live in one room in the house of her plaintiff-husband. His village is also 6 kilometres far from Rampur village. There is distance of 20-22 kilometre between Pirojpur and Rampur.

7. Learned Family Court analyzed the evidence of the parties. When the matter was finally argued, despite repeated calls, no one had appeared on behalf of the defendant. However taking into account the evidence on record, it came to a finding that the defendant had treated the plaintiff with cruelty as he was denied physical relationship since last 7 years. The witness D.W 2 belongs to her parental village and D.W 3 is his sister’s son. No other witness has come to support her case. The witnesses P.Ws. 1, 2 and 5 belong to matrimonial village of the defendant and others are of nearby village of the plaintiff, who have supported the case of the plaintiff. Accordingly, the marriage between the parties were dissolved on the grounds of cruelty and desertion.

8. One additional fact has come after institution of the appeal that the plaintiff-husband/respondent herein has been acquitted in the case instituted by the appellant-wife under Section 498A of the Indian Penal Code. The judgment of acquittal dated 23rd September, 2017 passed in G.R. No. 125 of 2012/ T.R. No. 676 of 2017 by the learned Court of Judicial Magistrate, 1st Class, Godda has been brought on record along with affidavit dated 27th November, 2017 on the part of respondent-husband. Learned Trial Court has opined that the prosecution had not been able to substantiate the charges levelled against the accused persons beyond all reasonable doubts.

9. Learned Counsel for the appellant has submitted that the material evidence on record did not satisfy the ingredient of cruelty or even desertion. If the defendant is living in one room in the same house of the plaintiff-husband, she cannot be alleged to have deserted him. The evidence on record further shows that she has been ill-treated after sometime of marriage and one of the twin child, in fact, died due to ill-treatment perpetrated on her. The plaintiff could not prove the ingredient of cruelty in such circumstances. Therefore, learned Counsel submits that the impugned judgment deserves to be set aside and the marriage between the parties be restored.

10. Learned Counsel for the respondent-husband has argued in support of the impugned judgment and defended the findings of cruelty and desertion rendered by the Court. He submits that a false case was instituted under Section 498A of the Indian Penal Code alleging demand of dowry and cruelty in marriage by the defendant. Learned Court of Judicial Magistrate has acquitted the sole accused-husband from the charges as the prosecution had failed to establish its case beyond all reasonable doubts. Such a false accusation clearly establishes the element of cruelty on the part of the wife. The evidence on record also shows that the plaintiff had been consistently denied physical relationship by the wife. The marriage between the parties was therefore just in a name as there were no emotional, physical or mental attachment. The impugned judgment is a well reasoned and needs no interference in such circumstances.

11. Learned Counsel for the appellant submits that the learned Family Court has in a proceeding under Section 125, Cr.P.C. instituted by the appellant-wife being Criminal Miscellaneous Case No. 189 of 2016 been pleased to award maintenance of Rs. 5,000 in favour of wife and child. The respondent is regularly making the payment and in case of any inadvertent default, the appellant immediately threatens for taking coercive steps.

12. We have considered the submission of learned Counsel for the parties and analyzed the relevant material evidence on record as placed on behalf of Counsel for the parties. We find considerable force in the submission of learned Counsel for the respondent on the plea of cruelty in marriage perpetrated by the appellant-wife. Learned Family Court, on the one hand, has on the basis of the evidence on record inferred absenceof physical relationship for more than 7 years between the parties. On the other hand, the institution of criminal case under Section 498A of the Indian Penal Code by the appellant-wife in 2012 goes to show sour relationship between the parties for quite sometime. Physical relation in such circumstances happens to be a remote possibility and have been denied by the plaintiff and his witnesses also. It is strange that despite institution of a case under Section 498A of the Indian Penal Code, the wife/appellant herein insisted on residing in one of the rooms in the same house of the plaintiff. If there was an illegal demand of dowry and cruelty being perpetrated by the husband, likely course on the part of the appellant would be to live with her parents. However, appellant has shown grit in living in one of the rooms of the plaintiff and still prosecuting the criminal case against him which has ended up in his acquittal. This criminal prosecution therefore can be said to be a false accusation against the husband on the part of the wife. In such circumstances, the respondent husband had justifiable grounds to allege ill-tempered behaviour and false accusation on the part of the defendant wife. False implication in a criminal case itself amounts to cruelty as has been held by the Apex Court in the case of Malathi Ravi, M.D v. B.V. Ravi M.D., reported in II (2014) DMC 483 (SC)=210 (2014) DLT 733 (SC)=V (2014) SLT 675=(2014) 7 SCC 640, paras- 43 and 44 thereof and in the case of Vishwanath Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal reported in II (2012) DMC 881 (SC)=192 (2012) DLT 672 (SC)=V (2012) SLT 230=AIR 2012 SC 2586, para-40 thereof.

“43. As we have enumerated the incidents, we are disposed to think that the husband has reasons to feel that he has been humiliated, for allegations have been made against him which are not correct; his relatives have been dragged into the matrimonial controversy, the assertions in the written statement depict him as if he had tacitly conceded to have harboured notions of gender insensitivity or some kind of male chauvinism, his parents and he are ignored in the naming ceremony of the son, and he comes to learn from others that the wife had gone to Gulbarga to prosecute her studies. That apart, the communications, after the decree for restitution of conjugal rights, indicate the attitude of the wife as if she is playing a game of chess. The launching of criminal prosecution can be perceived from the spectrum of conduct. The learned Magistrate has recorded the judgment of acquittal. The wife had preferred an appeal before the High Court after obtaining leave. After the State Government prefers an appeal in the Court of Session, she chooses to withdraw the appeal. But she intends, as the pleadings would show, that the case should reach the logical conclusion. This conduct manifestly shows the widening of the rift between the parties. It has only increased the bitterness. In such a situation, the husband is likely to lament in every breath and the vibrancy of life melts to give way to sad story of life.

44. From this kind of attitude and treatment it can be inferred that the husband has been treated with mental cruelty and definitely he has faced ignominy being an Associate Professor in a Government Medical College. When one enjoys social status working in a Government Hospital, this humiliation affects the reputation. That apart, it can be well imagined the slight he might be facing. In fact, the chain of events might have compelled him to go through the whole gamut of emotions. It certainly must have hurt his self-respect and human sensibility. The sanguine concept of marriage presumably has become illusory and it would not be in apposite to say that the wife has shown anemic emotional disposition to the husband. Therefore, the decree of divorce granted by the High Court deserves to be affirmed singularly on the ground of mental cruelty.

13. Taking overall perspective of the matter when the parties had no physical relationship for more than 7 years till the passing of the impugned judgment and that respondent had been also acquitted in a false criminal case instituted by the appellant-wife under Section 498A of the Indian Penal Code, it would be a futile exercise to restore the marriage between the parties when their relationship has remained only in name. In the light of the aforesaid discussions made and for the reasons recorded herein above, we do not find any reason and purpose in disturbing the findings of learned Family Court. Accordingly, the appeal stands dismissed.

14. It is left open for the appellant to approach the concerned Family Court in terms of Section 24 of Hindu Marriage Act for permanent alimony.

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