Court: Jharkhand High Court
Bench: JUSTICE Aparesh Kumar Singh, J. & B.B. Mangalmurti
Nisha Rashmi Vs. Kamlesh Pandey On 16 July 2018
Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ia) — Cruelty — Petitioner-wife stayed for 4-5 days only after marriage — No serious attempts to resolve issues by her family members or wife — The way matrimonial relationship has been neglected shows her indifference to sacred institution of marriage — Cumulative effect of evidence on record established sustained attitude of causing humiliation and torture on part of wife to make life of husband miserable — Findings of Family Court do not suffer from any perversity in appreciation of evidence or any errors of law or fact which requires any interference in appeal.
JUDGEMENT
1. Heard learned Counsel for the parties.
2. Wife is the appellant aggrieved by the judgment dated 20th December, 2016, decree dated 4th January, 2017, passed in Title Matrimonial Suit No. 120 of 2013 by the learned Additional Principal Judge, Additional Family Court, Dhanbad whereunder the suit instituted by the respondent-husband herein for dissolution of marriage on grounds of cruelty in terms of Section 13(1) (i-a) of Hindu Marriage Act, 1955 has been decreed.
3. Plaintiff husband pleaded before the learned Family Court that marriage with the respondent was solemnized on 8th July, 2010 as per Hindu rites and customs. The defendant stayed in her matrimonial home for 2-3 days, whereafter, her parents came and took her back. Her behaviour was cruel and lacking in love and affection right from the beginning. On the very first night she abused the plaintiff with filthy language, she repeated the same 3-4 times later also. She appeared to be an illitreate having no regard for sentiments, love and respect for the plaintiff. She abused his mother also. He went along with the cousin of the respondent Deepti Pandey (Deepa) to his in-laws’ house to air his grievances before her parents and also tried to resolve the dispute but in vain. Defendant threatened him with dire consequences. During that period Deepa and Gourav Pandey, younger brother of the defendant, were also present beside the room and had listened the whole matter. On 25th October, 2012, plaintiff along with his father and elder brother went to the paternal house of the defendant to narrate the entire traumatic incidents to her parents and other family members where she accepted the entire allegation in their presence but when they were asked to bring her back again to clarify the matter they denied to bring her. On 24th January, 2014 her father and other family members of defendant came to the house of plaintiff to settle the matter and continue with the marriage but it was not possible for him as he was very stressed. He was undergoing a feeling of stress and that there were no chances of restitution of his peaceful matrimonial life. As such he had to seek dissolution of marriage through the instant suit.
4. The defendant in her written-statement contended that the suit was not maintainable. She stated that she had gone to her matrimonial home for a period of 2 or 3 days. Allegations against her were refuted as false, baseless and concocted. She denied any cruelty being inflicted by her upon the plaintiff. She alleged that he was harassing her and not taking her to the matrimonial home as a result she had suffered mentally and physically. She also stated that plaintiff had never approached him for restitution of conjugal rights and that she was ready to live with the plaintiff as a faithful wife. Allegations of cruelty were denied as false and baseless. Based on the rival pleading of the parties the following issues were framed for adjudication by the learned Family Court:
1.
Whether the suit as framed is maintainable?
2.
Whether the plaintiff has got a valid cause of action for the suit?
3.
Whether the marriage of the plaintiff and defendant is fit to be dissolved on the ground of cruelty?
4.
What other relief or reliefs the plaintiff is entitled?
5. Plaintiff examined himself as P.W.1 and his father P.W.2 Gyan Chandra Pandey to support his case. The following documentary evidence were also evidenced in support by him.
Exhibit 1
C.C. of order of Misc. Case No. 2876/12
Exhibit 2
CC of plaint of Misc. Case No. 2876/12
Exhibit 3
CC of FIR of Chandan (Banka) P.S. Case No. 76/15 G.R. Case No. 1560/15.
Exhibit 4
System generated statement of payment of loan of HDFC Bank, Dhanbad
Exhibit 5
Order of Hon’ble High Court, Patna passed in Cr. Misc. Case No. 7056 of 2016.
Exhibit 6
Order passed in A.B.P. No. 52 of 2016 of Sessions Judge, Banka, Bihar.
Exhibit 7
Discharge certificate of Kamlesh Pandey of Central Hospital, Dhanbad.
Exhibit 8
Order dated 4.8.2016 passed in Cr. Misc. Case No. 7056 of 2016.
Exhibit 9
Copy of application dated 11.3.2015.
6. Defendant examined herself as D.W.1 and her father Chandra Mohan Pandey as D.W.2.
7. Issue No. 3 relating to cruelty by the defendant on the plaintiff was first taken up for consideration. The learned Family Court discussed the evidence of the plaintiff’s witnesses and other documentary evidence on record in context of the denial of the defendant’s witnesses and finally came to a finding in favour of the plaintiff against the defendant. It was taken note of by the Family Court that after solemnization of the marriage on 8th July, 2010 defendant lived in her matrimonial house for only 3-4 days. P.W.1 has supported his case in his deposition that the defendant was cruel and indifferent to the conjugal responsibilities and went back to her parental house 3-4 days after the marriage. Though he went to his in-laws’ house to air his grievances but in spite of her acceptance of such allegation in the presence of her cousin Deepti Pandey and brother Gourav Pandey she denied to come back. Again on 25th October, 2012 he along with his father and elder brother went to his in-laws’ house and asked them to call the defendant to clarify the matter but they denied to bring her. He tried his level best to restore the conjugal life but failed. He accepted during cross-examination that he had not filed any case for restitution of conjugal rights and he is not ready to keep his wife with him. P.W.2 father of the plaintiff also stated in support of the case of the petitioner on the point of marriage. He further stated that after few months of the marriage she had called him to seek permission to go to Vellore for treatment of her father. When he went to the village Chandan that is the parental house of the defendant, he was informed by her father that she was residing with her brother-in-law (Jija) for last 2-3 months. He got to know from his son about the ill-treatment meted to him. He further supported the statement of P.W.1 that they had gone on 25th October, 2012 to clarify the matter with the defendant but the family members of the defendant did not bring her before them. He also referred to an invitation by the elder brother of the defendant on 6th May, 2015 to attend his marriage ceremony. However, when they went there his Samdhi and the defendant did not talk with them and behaved rudely. In his cross-examination, he further stated of the efforts taken to restore the relationship between the spouses ended in vain. He denied institution of any suit for restoration of conjugal rights. He also stated that the stay of the defendant at Chandigarh with her brother-in-law was objectionable.
8. D.W.1 defendant in her evidence expressed that she always tried to maintain her relationship with her members of in-laws’ family and was ready to live in her Sasural. She also stated about a Panchyati convened at the village of plaintiff for restoration of conjugal rights but they did not comply with the decision of the Panchyati and never restored the matrimonial life. She accepted in her cross-examination that she had stayed only for four days at her matrimonial house during initial period of her marriage. She accepted that the in-laws had come to her matrimonial home after lodging of the present case and a Panchyati was held after the Holi festival in the year 2015. However, her in-laws had come not for Bidai but for a discussion only.
9. D.W.2 Chandra Mohan Pandey, father of the defendant, accepted the factum of marriage on 8th July, 2010 but stated having given cash of Rs. 3 lacs, gold and silver jewelleries, household articles and utensil as dowry in marriage. He stated that his daughter was kept properly for few days in her matrimonial house but thereafter she was tortured for demand of dowry. One day he left the defendant to his house and did not take her with him. She wants to live in her matrimonial house and does not want divorce. She has been staying with him for last three and a half years and is dependent upon him. His elder daughter is Nisha Ratna who was married nine months before the marriage of the present defendant. Her husband is an employee of Air Force at Chandigarh. His source of income is through agriculture. He has been a social worker and Mukhiya of the village. He has filed returns before the Income Tax Department for last four years. He has described the source of Rs. 13 lacs given during marriage from his relatives and himself i.e., Rs. 4 lacs from his own sources, Rs. 4 lacs from his father, Rs. 3 lacs from his cousin brothers and Rs. 2 lacs from his father-in-law which were paid in two instalments to the petitioner’s father. He however did not remember the date and day of the payments, but later on stated as in month of May and June. According to him the total expenditure in marriage was about 20-21 lacs. He stated that he had not produced any paper before the Court with regard to gold, silver and other jewelleries given by his wife and other relatives at the time of marriage. He also could not produce the original or photocopy of the cheque, draft, statement or slip, etc. regarding expenses of Rs. 20-21 lacs spent during marriage of the defendant. He stated that his daughter was tortured for demand of dowry after 4-5 days of marriage and the petitioner and his father left her at his house. He denied the suggestion that after 4-5 days of marriage all family members went to the petitioner’s house to bring her back. He denied the suggestion that his son-in-law with his father and elder brother came to his house for Bidai i.e., taking her back and that he ill-treated them. He accepted that a Panchyati was held during pendency of the present case at Baghmara for Bidai but prior to that no Panchyati was held.
10. From the documentary evidence on record, it further transpired that the defendant lodged an F.I.R. being Chandan P.S. Case No. 76 of 2015 Ext.3 against the petitioner and his family members. Ext.9 a letter dated 11th March, 2015 written by father of the defendant indicated that he took Bidai of his daughter and brought her to his house. However, this is of little significance as defendant in her cross-examination herself admitted having stayed for 3-4 days after marriage in her matrimonial house whereafter she started living in her parents’ house. On the other hand, Ext.2 is an information petition being Misc. Case No. 2876 of 2012 filed by the plaintiff which disclosed that after 8th April, 2010 she did not come back to the plaintiff and on 25th October, 2012 he, his father and his brother have tried to resolve the matter with the family members of the defendant but they did not care to send her back. Statement of P.W.2 that defendant had asked his permission to go to Vellore for treatment itself proved that she was staying at her parents’ house after few months of her marriage. Further evidence of the P.W.2 having gone to attend the religious ceremonies in the house of younger brother of his Samdhi Awadesh Pandey are also on record, wherein, it has been stated that he came to know that the defendant was residing with her elder brother-in-law at Chandigarh. Even during the visit on 25th October, 2012 P.W.2 and his son were not allowed to meet the defendant despite request being made to her father. Again on 6th May, 2013, P.W.2 father of the petitioner and family members attended the marriage ceremony of the brother of defendant but no respect was paid by the defendant or her family members, rather they were humiliated. Significantly, P.W.2 had not been cross-examined on this point that the defendant was residing with her brother-in-law at Chandigarh where her brother-in-law lived alone. It had also been admitted by the defendant at para 17 of her cross-examination that petitioner and his family members had visited her house to have a talk but she denied that they had come for taking her back. It further appears from the evidence on record as discussed by the learned Family Court that there were no statements of cruelty in marriage on non-fulfilment of demand of dowry made by the defendant. However, two years after the institution of suit and the filing of written statement thereafter, suddenly an F.I.R. was instituted by her being Chandan P.S. Case No. 76 of 2015 under Section 498-A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against the petitioner and his family members on 16th July, 2015. She alleged a demand of Rs. 5 lacs, assault upon her on non-fulfilment of demand of dowry and that they ousted her from matrimonial house. She also alleged payment of Rs. 13 lacs to the petitioner for marriage and a purchase of car by her father. Learned Family Court took note of the fact that the matrimonial suit was filed on 12th March, 2013, she filed her written statement thereafter and her deposition was made on 25th June, 2015; till that date no F.I.R. was instituted nor were any whisper in the written statement or in her examination-in-chief about demand of a single penny as dowry. On 16th July, 2013, the date fixed, defendant did not appear and prayed for an adjournment on grounds of treatment of her grandfather but on the same day the F.I.R. was instituted at Chandan. D.W. 2 her father had alleged having paid Rs. 13 lacs to plaintiff as dowry. However, his daughter had not even whispered a word in the present proceeding. On the other hand, Ext.4 the statement of loan account of Kamlesh Pandey, plaintiff, showed a sanction of Rs. 3,50,000 as loan on 12th July, 2010 for purchase of a Hyundai Sports car. He had thereafter regularly paid the instalments till 16th June, 2015. This document therefore was taken to have falsified the allegation of payment of dowry by the defendant’s father. Moreover, no case of cruelty in marriage for non-fulfilment of demand of dowry was instituted before 2015 when the defendant as per her own admission had stayed only for 3-4 days in the matrimonial house after her marriage on 8th July, 2008. Her father had also in his cross-examination accepted that she had stayed for only 4-5 days after her marriage in the matrimonial house and she was tortured and sent back. However, he has also categorically stated at Para 75 that he did not institute or make any written complaint before any authority or police station.
11. The learned Family Court on detail analysis of the evidence on record in the light of the pleadings of the parties, therefore arrived at an opinion that the F.I.R. was instituted with a calculated motive to embarrass and incarcerate the plaintiff and his family members after five years of the marriage and after two years of the institution of the matrimonial suit. The learned Family Court discussed the ingredients of cruelty as settled by the Apex Court in several judgments such as Naveen Kohli v. Neelu Kohli reported in I (2006) DMC 489 (SC)=128 (2006) DLT 360 (SC)=III (2006) SLT 43=II (2006) CLT 100 (SC)=(2006) 4 SCC 558 and in the case of V. Bhagat v. D. Bhagat reported in II (1993) DMC 568 (SC)=(1994) 1 SCC 337. It was of the opinion that the conduct of the defendant wife both in showing scant regard to her marital relationship with the husband and instituting a criminal case after five years of her leaving the matrimonial house, indicated her intention to terminate the matrimonial relationship forever. It created a sense of deep anguish, disappointment, agony and frustration in the minds of the husband. The cumulative effect of the evidence on record clearly established a sustained attitude of causing humiliation and calculated torture on the part of the wife to make the life of the husband miserable. Undoubtedly, it created a dent in the reputation of the entire family of the plaintiff which is one of the purest treasure of life. This behaviour of the wife would have frozen the emotions of the plaintiff and snuffed out any feelings surviving in favour of the defendant wife. Therefore, the petitioner had been able to successfully establish the ingredients of cruelty especially mental cruelty on the part of the defendant to seek dissolution of marriage. Rest of these issues were accordingly also answered in his favour.
12. Learned Counsel for the appellant has taken us through the findings of the learned Family Court and also placed the relevant material evidence on record to question it. Learned Counsel submits that there are only oral testimony on the part of the petitioner and his father of having made efforts to bring the defendant wife to the matrimonial home. These evidences alone did not convey any real intent on the part of the petitioner to revive the marriage. Admittedly, no suit for restitution of conjugal rights was filed by the husband. The defendant/appellant herein has through her written statement and deposition always conveyed her intention to go back to her matrimonial home but no sincere attempt was made on the part of the petitioner. Cruelty in marriage is something more than the wear and tear of life. There are no such aggravating circumstances on record which could justify the finding of cruelty against the defendant wife. Institution of a criminal case is a legal recourse which has been exercised by the wife after some period of time which should not have been taken against her as the final outcome of the criminal proceedings still awaited. He submits that the learned Family Court seems to have been carried away by applying the ratio of the judgments rendered by the Apex Court in a totally different context to the facts of the present case. In such circumstances, the plea of the petitioner to dissolve the marriage was fit to be dismissed. Since the findings of the learned Court are not based on proper appreciation of the evidence and pleadings and evidence on record, it deserves to be set aside.
13. Learned Counsel for the respondent-husband submits that the entire sequence of facts amply demonstrates the total neglect and indifference of the wife to the institution of marriage. Specific assertions have been made by the petitioner’s witnesses that she was living with her elder brother-in-law, employed in Air Force at Chandigarh alone. The defendant has however consciously avoided putting the P.W.2 to cross-examination on this point. His statement therefore remains unrebutted and cannot be impeached at this stage. The learned Family Court has reviewed the entire matrimonial life of the spouses and rightly found that a false accusation has been made after five years of cruelty and demand of dowry against the petitioner and his family members during pendency of the matrimonial suit. This accusation has been manufactured when prior to that the same defendant in her written statement or her deposition never accused the petitioner or his family members of any demand of dowry or cruelty in marriage on account of its non-fulfilment. The evidence on record further goes to show that the petitioner and his family members have made more than few efforts to resolve the matter and bring the wife back to the matrimonial home but the approach of the defendant in particular and her family members in general did not allow it to fructify. The petitioner husband in such circumstances was a victim of neglect, indifference and apathy over a sustained period of five years, since the solemnization of marriage in July, 2010. The defendant-wife in her cross-examination consciously accepted having stayed in the matrimonial home for 3-4 days only after marriage. She accepted efforts of Panchyati but denied it on the ground that they had come only for a talk and not to take her back. The defendant-wife and her father have, however, not been able to show any specific instance during the entire period when a sincere effort was made on their part to take the defendant back to the matrimonial home. These circumstances taken together left no room of doubt in the minds of learned Family Court that the defendant was responsible for mental cruelty in marriage. The criminal case instituted in July, 2015 was intended to embarrass and harass the petitioner and his family members. As such, the findings of the learned Family Court are well considered and based upon proper evidence on record which should not be interfered in appeal. The appellant has not been able to make out any good grounds in support of her case.
14. We have considered the submission of learned Counsel for the parties at length, gone through the impugned judgment and also analyzed the relevant material evidence on record as relied to by the Counsel for the parties. We have also scrutinized the findings of the learned Family Court based on these material evidence on record. The narrative above need no repetition. There is an admission on the part of the wife of having stayed for 3-4 days only after her marriage in July, 2010 in her matrimonial home. On the other hand, there is no allegation of demand of dowry or cruelty in her written statement. She does not also attribute any cruelty in marriage in her deposition. On the other hand, two years after the institution of the matrimonial suit, her written-statement having been filed and deposition made in June, 2015, the F.I.R. was registered on 16th July, 2015 alleging cruelty in marriage on non-fulfilment of demand of dowry. Learned Family Court had therefore reason to believe that the matrimonial case was lodged with an intention to embarrass and harass the petitioner and his family members. We also find that the petitioner has supported the case made out in the plaint through his witnesses and shown that more than one attempts were made on their part to resolve the issue with the defendant and her family members which failed because of lack of favourable response from their side. We also find that the defendant has significantly chosen not to cross-examine the petitioner’s father P.W.2 on the specific statement relating to the stay of the defendant-wife with her elder brother-in-law employed in Air Force at Chandigarh who was living alone. Taking an overall perspective of the matter based on the rival pleadings and evidence on record also, we find that any conscious intent or effort on behalf of the appellant to revive her conjugal life with the petitioner is missing. A wife who had stayed for 4-5 days only after the marriage and her family members could certainly be expected to have made many more serious attempts to resolve the issues in the marriage if at all there was a fault with the petitioner. These conscious acts are completely missing in the present case on the part of the wife and her family members. The way the matrimonial relationship has been neglected shows her indifference to the sacred institution of marriage. Such a sustained course of conduct over a period of time would certainly freeze all emotions in the aggrieved spouse and snuff out any emotional ties which may be existing in the minds of the petitioner. We may profitably refer to the illustrative examples of mental cruelty as laid down by the Apex Court in the case of Samar Ghosh v. Jaya Ghosh reported in I (2007) DMC 597 (SC)=IV (2007) SLT 76=II (2007) CLT 72 (SC)=(2007) 4 SCC 511, is quoted hereunder :
“95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.
99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i)
On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii)
On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii)
Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv)
Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v)
A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi)
Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii)
Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii)
The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix)
Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x)
The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi)
If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii)
Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii)
Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv)
Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though 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 feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”
15. Taking all these facts and circumstances together in the light of the principles laid down by the Apex Court, we are of the opinion that the findings of the learned Family Court do not suffer from any perversity in the appreciation of evidence or any such errors of law or on fact which requires to be interfered in appeal.
16. The instant appeal is devoid of merit, it is accordingly dismissed. Decree accordingly.
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