Court: Madhya Pradesh High Court
Bench: JUSTICE Ajit Singh & N.K. Gupta
Shikha Tamrakaar Vs. Rohit Tamrakaar On 19 December 2013
Law Point:
Hindu Marriage Act, 1955 — Sections 13(1)(ia), 13(1)(ib) — Cruelty — Desertion — Appellant-wife was quarrelsome with her husband and his parents — She was not making meals for them, forced her husband to reside away from his parents and gave threat to commit suicide for separation — She deserted him without any reason — Appellant did not try to resolve the matter and continued to desert him, though her husband wanted — Decree of divorce in favour of husband rightly granted.
JUDGEMENT
1. The appellant (wife) has preferred the present First Appeal against the judgment and decree dated 20.8.2008 passed by the Principal Judge, Family Court, Bhopal in RCC No. 226-A/2007 whereby a decree of divorce was passed in favour of the respondent (husband).
2. The facts of the case in short are that the respondent/husband has moved a petition under Section 13 of the Hindu Marriage Act to get a decree of divorce in his favour on the basis of ground of cruelty and desertion for more than two years. It was pleaded that the marriage of the respondent and the appellant took place on 29.4.2004 but soon after the marriage the appellant started misbehaving with the respondent and his parents. She wanted to live separately. In the month of August the appellant went to her parents house at Sironj on the occasion of Raksha Bandhan. Again when she came back she started quarrelling with the respondent and his family members. She was not ready to prepare meals, etc. She was consuming time by talking on phone and mobile with her family members and unknown persons and when she was prohibited to do so, her behaviour was quarrelsome with the parents of the respondent. She was often giving a threat that she would get the parents of the respondent in police custody in a case of dowry cruelty. She gave threat for 2-3 times that either she would consume poison or she would commit suicide by burning. On 3.2.2005 she tried to pour kerosene upon her and to commit suicide. Under such circumstances, the respondent started living with the appellant in a separate house which was taken on rent. The appellant and her relatives publicized a wrong fact against the father of the respondent that he tried to commit rape upon the appellant. On 4.3.2005 the appellant went to Sironj with her brother and thereafter, she did not come back and deserted the respondent therefore, it was prayed that the decree of divorce may be passed.
3. In reply the appellant denied all the allegations made in the petition. On the contrary she alleged that a demand of Rs. 5 lakh and a motor cycle was made by the respondent and his parents. Since the respondent had started a business and from the income of that business it was not possible for the respondent to live with his parents and, therefore, respondent himself arranged a separate residence for the respondent and appellant. The respondent also directed the appellant to fulfil the conditions of his parents. The appellant resided with the respondent up to 27.4.2007 and thereafter, she was forced to leave the house due to assault upon her by the respondent and therefore, on 27.4.2007 she went to Sironj with her minor child and thereafter, she had lodged an FIR at Mahila Police Station, Bhopal. She tried to co-operate with the respondent and his parents but, due to cruelty of the respondent and his parents she could not live with the respondent and therefore, it was prayed that the petition may be dismissed with exemplary cost of Rs. 25,000.
4. The learned Principal Judge, Family Court after framing issues recorded the evidence adduced by the parties and after hearing the learned Counsel for the parties passed a decree of divorce in favour of the respondent on the basis of the ground of “cruelty”.
5. The learned Counsel for the parties heard at final hearing by us.
6. In the present case, neither party proved any document in its favour. The case is dependent upon the oral evidence of the witnesses produced by the parties. It is a case of oath against oaths and therefore, it was for the Trial Court to assess that whose statement on oath was correct. The appellant could not rebut the allegations made by the respondent and the statements given by respondents Rohit Tamrakaar (PW1) and Ramesh Prasad (PW2) could be believed. The respondent had raised so many allegations about the behaviour of the appellant but, in reply the appellant relied upon her FIR and an allegation that she was being harassed for dowry demand and thereafter, she was thrown out from the house on 26.4.2007. In that respect if the statements of Shikha (DW1) and Mukesh (DW2) are considered then they have stated that there was a demand of Rs. 5 lakh from the side of the respondent and his parents and therefore, a sum of Rs. 1 lakh was paid to the respondent. However, there is a material contradiction between the statements made by Shikha and Mukesh.
7. Firstly that, Shikha has stated that a sum of Rs. l lakh was paid by her father and brother in the house of Bhopal i.e. when they were residing with the parents of the respondent whereas, Mukesh has accepted in para 1 of his statement that the sum of Rs. l lakh was given to the respondent when he was residing in a rented house. Secondly, Shikha has stated that the payment of Rs. l lakh was given by her father and brother whereas Mukesh, did not say that at the time of payment his father was present. On the contrary he has stated that he paid a sum of Rs. l lakh in two instalments. In para 4 he has stated that he gave a sum of Rs. l lakh in two instalments but, he could not tell the date on which such payment was made. If a sum of Rs. 1 lakh was given to the respondent in two instalments then there should be similarity in the statements of Shikha and her brother Mukesh about the mode of payment and place of payment. Looking to their material contradictions, it would be apparent that the payment of Rs. l lakh was never made to the respondent and a fake case has been prepared by the appellant in that respect.
8. Also it would be apparent that the appellant lodged an FIR against the respondent and his parents relating to cruelty on the basis of the dowry demand. Though the copy of FIR was not filed in the case and that is a separate matter, therefore, that matter should not be considered in the present case in a detailed manner otherwise a prejudice may be caused in the criminal case. However, the conduct of the appellant can be observed on the basis of that FIR. Shikha (DW1) has accepted that marriage of the sister of the respondent took place on 3.2.2006 and thereafter, she was residing at Betul. The appellant was asked as to whether on 26.4.2007 the sister of the respondent was at Bhopal or not then the appellant replied that she was residing in the rented house whereas, the sister of the respondent if she would have come from Betul to Bhopal, she must be with her parents and therefore, she could not know as to whether on 26.4.2007 she was at Bhopal or not. However, the appellant has accepted in para 6 of her evidence that in the FIR lodged against the respondent and his family members, name of his sister was included in that FIR for the incident took place on 26.4.2007 though at that time according to the appellant she was not residing with the parents of the respondents and there was no possibility of interference done by the sister of the respondent in the family matters of the appellant and, therefore, it would be apparent that fake contents were shown in the FIR lodged by the appellant against the respondent.
9. As discussed above, Mukesh or his father never paid any some to the respondent relating to dowry demand and therefore, prima facie it shall be presumed that there was no dowry demand from the side of the respondent and his parents. Also if there was a dispute for the dowry demand then the appellant should have been ousted from the very beginning or she would have lodged a complaint before Police Station Mahila Thana, Bhopal prior to filing of divorce petition. But she had lodged an FIR on 27.4.2007 or thereafter whereas, the respondent had already filed the petition under Section 13 of the Hindu Marriage Act on 26.4.2007.
10. If the appellant did not leave the house of the respondent on 4.3.2005 then what was the necessity to the parties for reconciliation proceedings. Mukesh (DW2) has accepted in Para 6 of his statement that his parents and various relatives went to the house of the respondent for redressal of the problem. If the appellant was ousted from the house after filing of the divorce petition and notice of the divorce petition was served then reconciliation between the parties could be done before the Trial Court and there was no need to visit the parents of the appellant along with relatives to the house of the respondent for redressal of the problem. Hence by evidence of Mukesh (DW2) it would be apparent, that the appellant pleaded a false case that she was ousted on 26.4.2007.
11. If the appellant was residing with the respondent in the year 2005 then her child must have been born at Bhopal and, therefore, the papers relating to admission of the appellant in a particular hospital could be placed on record to show that delivery of the child took place at Bhopal, but no such paper is produced. If the delivery of the child had taken place at Bhopal then the respondent would have pleaded in his petition that the appellant was not permitting his parents to meet the child whereas, the respondent stated such a fact in his statement but, it was not pleaded in his petition which indicates that at the time of filing of the petition no such situation arose before the respondent and therefore, it is established that delivery of the child took place to the appellant at Sironj and not at Bhopal.
12. The respondent has pleaded that he lodged a report to the Police and a notice was issued from Pariwar Parmarsh Kendra to the appellant. She came and attended the conciliation proceeding of Pariwar Parmarsh Kendra and she did not come back with the respondent to reside with him though an assurance was given by her at Pariwar Pramarsh Kendra. If the appellant was residing with the respondent at that time then there was no need to the respondent to move an application before the Pariwar Pramarsh Kendra and to submit a reply. If the respondent had done harassment as alleged then the appellant must have intimated her difficulties before the Pariwar Pramarsh Kendra and she would have told about the harassment relating to dowry demand. The appellant could file the proceedings of the Pariwar Pramarsh Kendra to establish that she told at the Pariwar Pramarsh Kendra about dowry demand and harassment but, such documents were not produced by the appellant. Under such circumstances, prima facie it appears that the FIR lodged by the appellant was nothing but a counter blast after getting a notice of the divorce petition filed by the respondent or knowledge about the petition.
13. It is argued that filing of a false FIR against the husband and parents is again a ground of cruelty and in support of the contention the judgment passed by Hon’ble the Apex Court in the case of K. Srinivas Rao v. D.A. Deepa, I (2013) DMC 458 (SC)=II (2013) SLT 338=AIR 2013 SC 2176, is cited in which it is laid that if a false FIR relating to dowry demand and harassment is filed by the wife then it is also an act of cruelty against the respondent and his family members. In the present case it would be apparent that the respondent did not take such a plea in his petition. The filing of the FIR by the appellant was a subsequent event after filing of the petition and therefore, it was for the respondent to amend his petition and the instance of cruelty would have been added that the appellant lodged a false FIR for offence punishable under Section 498A of I.P.C. However, the respondent did not modify his petition and therefore, by a subsequent conduct of the appellant a decree of divorce cannot be passed due to cruelty done by the appellant by filing an FIR. The evidence should be looked into according to the pleadings done by the parties. However, the conduct of the appellant for filing a false FIR may be considered as her conduct relating to her previous activities done before the filing of the divorce petition.
14. On the basis of the aforesaid discussion, it is duly established that the appellant left the house of the respondent on 4.3.2005 and thereafter, getting the notice of the divorce petition she had lodged a false FIR against the respondent and tried to create a new factual position that she resided with the respondent up to 26.4.2007. In the present case, it was duly proved that the appellant deserted her husband for more than two years before filing of the petition and therefore, the Trial Court would have given a decree of divorce on the basis of the ground “desertion”. Since the respondent did not file any cross-objection or a counter appeal in the present case therefore, this Court cannot pass a decree of divorce on the basis of two years desertion done by the appellant. However, the evidence of the appellant may be accepted that the respondent deserted her without any reason which also amounts to a cruelty.
15. The learned Counsel for the respondent has filed a copy of the judgment dated 31.3.2010 passed by the Second Additional Sessions Judge, Bhopal in Criminal Appeal No. 476/2009 whereby the respondent was acquitted from the charge of Section 498A of I.P.C. to show that a false case was lodged by the appellant against the respondent but, as discussed above that fact cannot be considered in the present case because the respondent did not take a ground in his petition that he was falsely prosecuted by the appellant by lodging such an FIR.
16. On the basis of the aforesaid discussion, it is apparent that no demand of dowry was made either by the respondent or his parents. The appellant was not ousted on 26.4.2007 and, therefore, she had no reason to leave the house of the respondent. Under such circumstances, it would be apparent that the respondent proved the fact that the appellant deserted him since 4.3.2005 without any reasonable cause. The evidence of Rohit Tamrakaar (PW1) is also accepted that the behaviour of the appellant was quarrelsome with the respondent and his parents therefore, the respondent was forced to take a separate house on rent to keep the appellant. It was the height of cruelty that on 3.2.2005 she gave a threat to commit suicide, so that the respondent should leave the house of his parents. The evidence of Rohit can be accepted on the ground that she applied before the Pariwar Pramarsh Kendra but, the appellant did not follow the compromise which took place between them at Pariwar Pramarsh Kendra.
17. Ramesh Prasad (PW2) has stated that the appellant made an allegation upon the father of the respondent that he tried to commit rape upon her whereas, no such allegation is made by the appellant even in the FIR lodged by her and, therefore, it would apparent that she made a false, nasty allegation against her father-in-law amongst her relatives and relatives of the respondent which also amounts to cruelty to the respondent.
18. The word “cruelty” is not defined in the Hindu Marriage Act in a specific manner. However, it depends upon the fact of each and every case. Hon’ble the Apex Court in the case of Samar Ghosh v. Jaya Ghosh, I (2007) DMC 597 (SC)=IV (2007) SLT 76=II (2007) CLT 72 (SC)=(2007) 4 SCC 511, in para 101 gave so many illustrations about mental cruelty. Out of them illustrations (i), (ii), (iv), (v) and (vi) may be perused which are as under:
“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) …………………
(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) …………………………”
19. If the illustrations given by Hon’ble the Apex Court in the case of Samar Ghosh (supra), are considered in the present case then it would be apparent that the appellant was quarrelsome with her husband and his parents, she was not making the meals, etc. for her husband and family members, she forced her husband to reside away from his parents, for such separation she gave a threat to commit suicide, thereafter, she deserted the respondent without any reason on 4.3.2005. The respondent tried to resolve the matter but the appellant did not try to resolve the matter and continued to desert the respondent. She propogated amongst the family members and society of Tamrakaar Samaj that the father of the respondent tried to commit rape upon her and after considering the consolidated effect of the overacts done by the appellant, it would be apparent that the appellant had done the cruelty with the respondent and his parents and, therefore, if a decree of divorce is passed by the learned Principal Judge, Family Court, Bhopal against the appellant on the ground of cruelty then it is based on the cognate evidence and considering the conduct of the appellant. The appellant could not establish any ground to show that any interference can be done in the decree and judgment passed by the Trial Court.
20. On the basis of the aforesaid discussion there is no reason to disturb the decree of divorce passed by the Trial Court and therefore, the appeal filed by the appellant cannot be accepted. Consequently, the appeal filed by the appellant is hereby dismissed. The judgment as well as the decree passed by the Trial Court is hereby confirmed. The parties shall bear their own costs.
21. The copy of the judgment along with the appellate decree shall be sent to the Trial Court along with his record for information.
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