Suspension of Husband owing to False Complaint of Wife is Cruelty

MADHYA PRADESH HIGH COURT

JUSTICE S.K. Gangele, J. & Akhil Kumar Shrivastava

BALIRAM Vs. SUMITRA On 18 July 2018

Law Point:
He was suspended and subjected to departmental inquiry – Husband entitled for decree of divorce.

JUDGEMENT

Appellant has filed this appeal against the judgment dated 6.1.2007 passed in Civil Suit No. 21-A/2006. By the impugned judgment, the Trial Court dismissed the suit of the appellant filed under Section 13 of Hindu Marriage Act for grant of decree of divorce.

2. Marriage of the appellant and respondent was solemnized on 20.6.1991 at Damoh in accordance with Hindu rituals. Appellant pleaded that since marriage, respondent practiced cruelty with him. From the last 13 years, respondent was not living with the appellant. She levelled allegations that appellant had performed second marriage and he was living with a lady. A complaint was lodged by the respondent in this regard with agriculture department. The appellant was suspended vide order dated 3.3.2001. Departmental inquiry was initiated and in the inquiry the allegations levelled by the respondent against the appellant were found baseless, thereafter his suspension was revoked vide order dated 11.9.2002. Respondent abused the appellant for that period and he lodged complaint at the police station.

3. Appellant tried his best to pursue the respondent to live with him, however he was unsuccessful. Respondent filed a false private complaint against the appellant and his family members before Judicial Magistrate First Class under Section 494 of IPC. On the basis of cruelty and desertion, appellant sought decree of divorce.

4. Respondent denied pleadings of the appellant she admitted in her written statement that she filed a complaint against the appellant with his department in regard to second marriage. She pleaded that she lived with the appellant upto 1993 and on 12.3.1993 his son Sunny was born from the wedlock of the appellant and respondent. At Village-Shahpur, appellant was living in the house of one lady Kalpna Upadhyay. Her husband was died and he developed relationship with that lady. Since than appellant was living with the aforesaid lady. Two children were born from the wedlock of appellant and Kalpna Upadhyay on 8.8.1999 in Ashirwad Clinic of Dr. P.K. Jain. She further pleaded that she tried to live with the appellant, because appellant was living with another lady. It was not possible for her to live with the appellant. Earlier the appellant filed a suit for divorce which was dismissed by the Trial Court on 26.9.2002. She admitted the fact that case under Section 494 of IPC is pending before the Judicial Magistrate First Class filed by her against the appellant and Kalpana Upadhyay. On the basis of pleadings the respondent prayed for dismissal of suit.

5. The Trial Court framed issues that whether the respondent practiced cruelty with the appellant and whether the respondent was living in adultery and whether earlier suit which was dismissed by the Trial Court, present suit is maintainable and whether the appellant has been living with another lady, the Trial Court dismissed the suit.

6. Learned Counsel for the appellant has submitted that the respondent levelled false allegations against the appellant. These allegations were not found true by the Trial Court in criminal case as well as civil case. Appellant was suspended and subsequently, his suspension was revoked. Criminal case filed by the respondent has also been dismissed by the Trial Court. These are the subsequent development, hence the present suit is maintainable and the appellant is entitled for decree of divorce. In support of his contentions learned Counsel for the appellant relied on the judgment of Bombay High Court delivered in Family Court Appeal No. 131 of 2006 on 2nd July, 2013, Shri Mahesh Ganpat Paigude v. Sau. Mohini Mahesh Paigude.

7. None appears on behalf of the respondent.

8. The appellant examined himself. He examined other witnesses Girdharilal Rai, Gyanilal Shrivas, Gangaram and Umashanakar. They have submitted their affidavits on behalf of the appellant. They were cross-examined. Respondent tendered her affidavit. Smt. Vaijanti Bai mother of the respondent and Shankar who was neighbour of the respondent also tendered their affidavits in support of respondent. They were cross-examined.

9. Admitted facts of the case are that the respondent levelled allegations against the appellant that he was living with another lady Kalpana Upadhyay. A complaint was lodged by the respondent in agriculture department against the appellant leveling the allegations of adultery that he was living with a lady Kalpana and he had performed second marriage. Appellant was suspended and departmental inquiry was instituted against him. Vide order dated 27.12.2004 he was exonerated from the charges after holding regular departmental inquiry, his suspension was revoked.

10. Respondent also filed a private complaint alleging that the appellant had been living in adultery and performed second marriage. An offence under Section 494 of IPC was registered against the appellant and Smt. Kalpana Upadhyay. The Trial Court vide order dated 10.10.2007 discharged the appellant and Kalpana Upadhyay from the charges of Sections 494/34 of IPC.

11. Earlier the appellant filed a suit for grant of divorce. The aforesaid suit was dismissed vide judgment dated 26.9.2002 passed in Civil Suit No. 8-A/2001. In the aforesaid suit respondent levelled allegations that the appellant was living in adultery with Kalpana Upadhyay and he had performed second marriage. The Trial Court in its judgment pronounced in Civil Suit No. 8-A/2001 has held that the allegations levelled by the respondent that appellant had performed second marriage with Kalpana Upadhyay and he was living with that lady and two children were born from their wedlock are not true and not proved.

12. Inspite of the fact that the Trial Court recorded finding in regard to pleadings of the respondent that he was living with Kalpana Upadhyay and he had performed marriage with her and two children were born from their wedlock are not correct. The respondent made the same allegations repeatedly. Complaint was filed by the respondent with agriculture department of the appellant leveling the same allegation in the year 2002, after the judgment of the Trial Court. Appellant was suspended, he was subjected to departmental inquiry. Subsequently he was exonerated from the charge and his suspension was revoked. Even though the respondent again filed a private complaint against appellant and Kalpana Upadhyay, under Section 494 of IPC. Trial Court discharged the appellant from the aforesaid charge.

13. Hon’ble Supreme Court in the case of Narendra v. K. Meena, III (2016) DMC 429 (SC)=VI (2016) SLT 778=233 (2016) DLT 149 (SC)=(2016) 9 SCC 455, has held as under if the allegations were made by wife that husband was living in adultery and though the allegations were not found proved.

16. With regard to the allegations about an extramarital affair with maid named Kamla, the re-appreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the Appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had levelled allegations with regard to an extra-marital affair of the Appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the Appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person—be it a husband or a wife. We have carefully gone through the evidence but we could not find any reliable evidence to show that the Appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the Appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra-marital life to be quite serious and that can surely be a cause for metal cruelty.

18. Applying the said ratio to the facts of this case, we are inclined to hold that the unsubstantiated allegations levelled by the Respondent wife and the threats and attempt to commit suicide by her amounted to mental cruelty and therefore, the marriage deserves to be dissolved by a decree of divorce on the ground stated in Section 13(1)(ia) of the Act.

14. In the present case also the respondent levelled repeated allegations of adultery against the appellant, though the allegations were not found true by the Civil Court in the criminal proceeding and in the departmental inquiry. Hence in our opinion appellant is entitled a decree of divorce on the ground of cruelty.

15. The next question is that whether the present suit is maintainable in view of the earlier judgment. The earlier judgment was passed in the year 2002 subsequent to the judgment respondent filed a complaint against the appellant in his department. He was suspended and subjected to departmental inquiry. She also filed a criminal case against the appellant and appellant was acquitted from the charges, hence, in our opinion on the basis of subsequent facts present suit is maintainable. The appellant is entitled for decree of divorce.

16. The appeal filed by the appellant is allowed. The impugned judgment and decree passed by the Trial Court is hereby set-aside. The decree of divorce is granted in favour of the appellant. The marriage solemnized between the appellant and respondent is hereby dissolved. No order as to costs.

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