Pramod Bijalwan Vs. Satendra Dutt

Court: Uttarakhand High Court

Bench: JUSTICE Rajesh Tandon

Pramod Bijalwan Vs. Satendra Dutt On 6 July 2007

Law Point:
Cruelty, Desertion — Both grounds proved by respondent — False allegation of adultery against husband or wife is mental cruelty and is ground for divorce — Vague allegations made to defame by petitioner amounts to cruelty — Respondent wife failed to implead as party and prove her allegation of adultery against petitioner — Non-compliance of Rule 13 of Divorce Rules — From statement of appellant it is clear there was no relationship between parties as husband and wife even when they were not resided under single roof since April 2001 — Appellant deserted respondent and did not cohabit with him — Respondent proved both grounds for divorce, i.e., cruelty and desertion — Petition rightly allowed by Trial Court for decree of divorce.

JUDGEMENT

1. Heard Mr. Rakesh Thapliyal, Counsel for the appellant and Mr. Sarad Sharma, Counsel for the respondent.

2. Present appeal has been filed against the judgment and decree dated 31.10.2006 passed by the District Judge, Tehri Garhwal in O.S. No. 14 of 2004, thereby decreeing the petition of the petitioner-respondent for divorce.

3. Briefly stated Sri Satendra Dutt, respondent has filed a petition under Section 13 of the Hindu Marriage Act, before the District Judge, Tehri Garhwal for divorce against the appellant-defendant Smt. Pramod Bijalwan with the allegations that the parties are Hindu and they were married according to the Hindu rites on 23.11.1984. The petitioner husband was serving in Army. Two issues were born from their wedlock. According to the petitioner he constructed a house at Dehradun in the year 2002 in the name of his wife. Thereafter the appellant abandoned the relationship of husband and wife and the petitioner husband started living separately.

4. The petitioner has alleged that in August 2003, he came to Dehradun on leave but the appellant did not allow him to enter inside the house. When he entered in the house forcefully, the appellant did not provide him tea and meal and misbehaved with him. He was locked in his room. On the subsequent occasions also, when he came to his house he was maltreated by the appellant due to which he had to stay in hotel. Thus the petitioner has prayed for a decree of divorce on the ground of cruelty.

5. The appellant filed her written statement admitting her marriage with the petitioner. However, rest of the allegations were denied. She has stated that the house at Dehradun was constructed by her from her savings and loaning from mother and friends.

6. On the basis of the pleadings of the parties following issues were framed:

1. Whether the petitioner is entitled to get a decree of divorce on the ground given in the petition?

2. To what relief, if any, is the petitioner entitled?

7. The petitioner examined himself as PW.l and also filed 11 papers per list 21C/1. Smt. Pramod Bijalwan examined herself as D.W.1 and Anil Badoni as D.W.2 and filed 6 papers per list 27C.

8. On the basis of the evidence adduced by the parties the Trial Court has held that the wife committed cruelty with the petitioner husband and husband is entitled to a decree of divorce and accordingly allowed the petition of the husband by the impugned judgment and order. Feeling aggrieved the present appeal has been filed by the appellant wife.

9. Petition for divorce can be filed under Section 13 of the Hindu Marriage Act on the following grounds:

13. Divorce—(l) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

Explanation—In this sub-section, the expression “desertion”means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.

10. Two grounds have been claimed for a decree of divorce. Firstly that the opposite party wife has treated the petitioner with cruelty and secondly that the wife has deserted the husband for more than two years. The relevant paragraph of the plaint is quoted as under:

(“Hindi matter omitted”)

11. To prove his allegations against the appellant the respondent examined himself as P.W.1 and reiterated the plaint allegations in his affidavit under Order 18 Rule 4, C.P.C. In his cross-examination he has stated that his wife opposite party Smt. Pramod is serving as a Government Teacher and is getting Rs. 14,000 to Rs. 15,000 per month as salary. They have two sons. One is 19 years old and is studying in B.Sc. while other is 18 years old and is studying in Intermediate. The petitioner is employed in Indian Army. He has categorically stated that he used to come to his home once in a year for two months leave. He was not sending money by money order every month but he used to carry money with him when he used to come on leave and give the entire money which may be up to Rs. 40,000, to the opposite party wife. The respondent has stated in his cross-examination that his wife complained to his superior officers that he was not maintaining his wife and children. He has admitted that on 24.4.2001 his superior officers sent a letter to his wife along with the letter of excuse written by him.

12. PW.2 Bishan Singh was examined by the respondent to prove the cruel behaviour of the appellant wife towards the respondent. This person has stated that he went to the house of the respondent for electricity fittings but the appellant has ousted him from the house.

The respondent has submitted that the appellant has treated him with mental cruelty and did not permit him enter inside his house and he has to stay in a hotel. Such behaviour of the appellant constitutes cruelty.

13. The appellant has also alleged adultery against the respondent in her written statement but neither the adultery has been proved nor the party with whom the respondent had alleged illegal relationship has been made party to the proceeding. False allegation of adultery against the husband or the wife is mental cruelty and is a ground for divorce.

14. In paragraph No. 32 of her written statement the appellant has mentioned as under:

(“Hindi matter omitted”)

15. A perusal of the written statement shows that the appellant has come with definite allegation of adultery against the respondent but she has not complied with Rule 13 of the Hindu Marriage and Divorce Rules, 1956. Rule 13 of the Hindu Marriage and Divorce Rules reads as under:

13. Intervenor’s petitions—Unless the Court for good cause shown otherwise directs, where the written statement of the respondent alleges adultery by the petitioner with a named man or woman a certified copy of such statement or such material portion thereof containing such allegations shall be served on such man or woman accompanied by a notice that such person is entitled within the time therein specified to apply for leave to intervene in the case.

16. Thus as per above provisions it was incumbent upon the appellant-respondent to send a notice along with the certified copy of the written statement containing allegation of adultery to Smt. Manisha to apply for leave to intervene in the case. A perusal of the written statement shows that the name and residence of the lady has been disclosed and it was mandatory for the respondent-appellant to comply the provisions of Rule 13 of the Hindu Marriage and Divorce Rules, 1956 if compliance of this rule has not been done, it will be presumed that the allegations are vague and are made to defame the petitioner and it amounts to cruelty.

17. The respondent wife has failed to implead said Manisa as a party and then to prove her allegation of adultery against the petitioner.

18. Appellant Smt. Pramod Bijalwan (D.W.1) has alleged that when she was in Nagpur and remained for a month with her husband, she has deposed about the relations of respondent with Smt. Manisa. She has stated that she had seen it once only but no action was taken by her. Her brother D.W.2 has also stated about the illicit relation of the respondent with some other lady. In his cross-examination he has stated that he has no personal knowledge regarding this fact and all the allegations made by him against the respondent were told to him by his sister.

19. Thus mere allegation of adultery against a spouse, without any convincing and cogent evidence amounts to cruelty, and it can very well be a ground for divorce. The above conduct of the appellant amounts to cruelty in the matrimonial law.

20. In the case A. Jayachandra v. Aneel Kaur, I (2005) DMC 111 (SC)=VII (2004) SLT 582=(2005) 2 SCC 22, the Apex Court while defining ‘Cruelty’ has observed as under:

“To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law.”

21. In the case Mayadevi v. Jagdish Prasad, I (2007) DMC 325 (SC)=II (2007) SLT 639=(2007) 3 SCC 136, the Apex Court has held as under:

“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 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.

22. The appellant had tried to prove that the house was constructed by her at Dehradun from her own efforts and funds and the respondent husband has not contributed at all for the construction of house. On the other hand respondent has claimed that he had constructed the house at Dehradun although he has admitted that it is in the name of his wife. Although the present proceedings have no concern with the ownership of the house but even if it is accepted that the respondent appellant is the legal owner of the house even then the respondent was entitled to live in that house as a husband of the appellant and the appellant was under obligation to treat him properly but as per allegations of the respondent he was not allowed to enter in the house by the respondent during his vacation and he had to live in a hotel. Such behaviour of the appellant against the respondent is amounts to cruelty.

23. In the case of Naveen Kohli v. Neelu Kohli, I (2006) DMC 489 (SC)=II (2006) CLT 100 (SC)=III (2006) SLT 43=AIR 2006 SCW 1550, has observed as under:

40. The concept of cruelty in matrimonial maters was aptly discussed in the English case in Bertram v. Bertram, (1944) 59, 60 per Scott, L.J. observed—

“Very slight fresh evidence is needed to show a resumption of cruelty, for cruelty of character is bound to show itself in conduct and behaviour. Day in and day out, night in and night out.”

In Cooper v. Cooper, (1950) WN 200 (HL) it was observed as under:

“It is true that more serious the original offence, less grave need be the subsequent acts to constitute a revival.”

41. Lord Denning, L.J. in Kaslefsky v. Kaslefsky, (1950) 2 All.ER 398, 403 observed as under:

“If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperilled.”

42. The High Court of Australia in Wright v. Wright, (1948) 77 CLR 191, 210, has also taken the view that “the civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery.”

44. Lord Reid in Coillins v. Gollins, 1964 AC 644=(1963) 2 All.ER 966:

“No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health.”

24. Another ground taken by the petitioner for divorce is desertion.

25. Section 13(1)(ib) provides that if the appellant has deserted the respondent for a continuous period of not less than two years immediately preceding the presentation of the petition it would be a ground for divorce. Desertion has been explained that desertion means the desertion of the respondent by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.

26. The respondent has stated that whenever during vacation he went to his house at Dehradun, the appellant did not allow him to enter inside the house and misbehaved him. The appellant deserted the respondent and did not cohabit with him. D.W.1 Smt. Pramod Bijalwan has admitted in her cross-examination that there are no relationship of husband and wife between the parties since 1996-97. She has stated as under:

(“Hindi matter omitted”)

………………………..

(“Hindi matter omitted”)

27. Thus from the above statement of the appellant it is clear that there were no relationship between the parties as husband and wife even they were not resided under single roof since April 2001. She has stated that the said woman Manisha was the reason behind it, which indicates that the respondent was wilfully deserted by the respondent-appellant and has not fulfilled her obligation to cohabit with her husband for a continuous period of more than two years immediately preceding the presentation of the petition for divorce.

28. Thus the respondent has proved both the grounds for divorce i.e. cruelty and desertion and the petition has rightly been allowed by the Trial Court for a decree of divorce.

29. However, this order will not deprive the applicant from claiming the permanent alimony in appropriate proceedings before the appropriate Court, which shall be decided in accordance with law.

30. The appeal lacks merit and is hereby dismissed with costs.

Appeal dismissed.

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