Arun Beck vs Alma Jyoti Beck

Radhakishan Agrawal, J

Appellant-Husband preferred this appeal against the judgment and decree dated 22.08.2019 passed by the Family Court, Ambikapur, District Surguja, C.G. in Civil Suit No.64-A/2016, whereby the application filed under Section 10 of Indian Divorce Act, 1869 (for short, 'the Act, 1869') by the husband/appellant for grant of decree of divorce has been dismissed.

The facts, in brief, are that marriage between the appellant/husband and respondent / wife was solemnized on 27.05.1996 according to the custom of Christian religion. After marriage, the respondent / wife joined the company of the husband and out of their wedlock, two children were born. It is stated by the appellant-husband that respondent-wife is working as Siksha Karmi Grade-I in Churcha High School, whereas he is working as Assistant Administrative Officer in LIC, Manendragarh. During their stay at Manendragarh, the behaviour of respondent-wife has become cruel towards him and she used to have quarrels with him with respect to preparation of food etc. It is alleged by him that respondent-wife used to suspect his character and used to abuse him in filthy language. It is also pleaded by him that since both of them are government employees, therefore, he called her sister at Manendragarh to look after children, which was vehemently opposed by the respondent-wife. It is further alleged by him that respondent-wife used to have quarrels with him continuously and thus misbehaved cruelly towards him and after calling her brother, left the matrimonial home. It is also pleaded that respondent-wife returned to Manendragarh from her parental home, but she started living in a rented house in his neighbourhood. He made all possible efforts to bring the respondent-wife back, but she refused. Respondent-wife used to pressurize him to leave his family and stay with her. In the year 2010, he transferred to Pathalgaon from Manendragarh and in his absence, respondent-wife threatened his sister and took his children along with her. He has also pleaded that respondent-wife also made false report against him under Section 294, 506-B & 498-A IPC and thereafter, during trial, the case was compounded between the parties for the offence under Sections 294 and 506-B of IPC whereas the appellant was acquitted of the charge under Section 498A of IPC vide judgment dated 24.02.2010 passed by the Judicial Magistrate First Class, Manendragarh. It is further pleaded that respondent-wife had moved an application under Section 125 of Cr.P.C. for grant of maintenance and on the basis of compromise before the Family Court, he is giving maintenance of Rs.1,500/- each to his children. As the respondent-wife is residing separately for more than 7 years from him and there is no possibility of cohabitation between them as he was deserted by her without any sufficient cause, therefore, the appellant is entitled to decree of divorce.

The respondent-wife filed its written statement denying the averments pleaded in the suit filed by the appellant-husband. She has specifically stated that no cruelty has ever been committed by her. It is also specifically stated by her that she has neither suspected the character of her husband nor pressurized him to oust her her sister-in-law nor prevented him to help his family financially. It is also stated by her that since 2010, she has been living in the house of appellant-husband along with her children and she is always ready and willing to join the company of the husband and is ready to perform matrimonial obligations and their relationship is cordial and it was the appellant-husband who used to ill-treat her frequently. Therefore, it was prayed by her that the application filed by the appellant- husband seeking dissolution of marriage be dismissed.

On the basis of the averments made by the parties, the issues were framed and after affording opportunity of hearing to the parties, the Family Court decided all the issues in negative and dismissed the suit by holding that the husband / appellant failed to prove the grounds of cruelty and desertion.

Learned counsel for the appellant / husband submits that the impugned judgment and decree are perverse, illegal, erroneous and contrary to the facts of the case as well as evidence available on record. He further submits that the wife was harassing the appellant-husband both mentally and physically and used to suspect his character. According to him, there is no cohabitation between the parties for more than seven years, as the respondent-wife has deserted the husband and living separately without sufficient cause. It is further argued that respondent-wife has lodged a false case under Sections 498-A, 294 and 506-B against him and subsequently the case was compounded between the parties for the offence under Sections 294 and 506-B of IPC whereas the appellant was acquitted of the charge under Section 498A of IPC vide judgment dated 24.02.2010 passed by the Judicial Magistrate First Class, Manendragarh. Despite that, he visited her house to bring her back, but she did not return. He also submits that when he was transferred to Pathalgaon from Manendragarh, then in his absence, she came to his house and started living there without his knowledge. On these grounds, he urged that he is entitled to decree of dissolution of marriage.

Per contra, learned counsel for the respondent / wife submits that the appellant / husband used to quarrel with her, his behaviour towards her was cruel and he always created hindrances in her life because of which she was not able to perform her marital obligations properly. According to the wife, appellant-husband ousted her from the matrimonial home without any rhyme or reason. Respondent/Wife was always ready and willing to discharge her matrimonial obligations. Hence, the impugned judgment and decree passed by the Court below are well merited, which do not call for any interference.

We have heard learned counsel for the parties and perused the record.

Admittedly, the facts that the marriage between the parties was solemnized in the year 1996 and out of their wedlock, two children were born are not in dispute. The appellant / husband filed a suit seeking dissolution of marriage on two grounds i.e. desertion and cruelty. In order to deal with the desertion and cruelty, PW-1 Husband has stated that their relations were cordial from 1996 to 2008. The respondent-wife was employed as Shiksha Karmi I in Charcha Colony, Baikuthpur, High School. Thereafter, he got her transferred to Manendragarh, Girls High School as he is also working in LIC Office, Manendragarh. During their cohabitation at Manendragarh, the respondent-wife was suspecting his character and was quarreling in that regard and she could not perform her household duties properly nor could prepare food on time. Being fed up with her persistent ill-treatment, he called her sister namely Arvinda (PW-3) to look after their children, upon which respondent-wife has raised objection and used to misbehave with him with respect to her sister's stay. Respondent-wife with the aid of her brother Arvind Kujur, lodged a report against him for offence punishable under Sections 498-A, 294 and 506 of IPC at Police Station Manendragarh and a challan was filed, however, subsequently, the case was compounded between the parties and the appellant was acquitted. Thereafter, on transfer, he went to Pathalgaon after locking his door at Manendragarh, then the respondent-wife forcefully unlocked the door and started living there. It is also stated that the respondent-wife is living separately from him since 2009 and thereafter also, he made all possible efforts to keep the respondent-wife with him, but on every occasion, he was being threatened by the respondent-wife that he would not maintain any relations with his family members and would not send any amount to them towards their maintenance. In cross-examination para 7, it is admitted by him that on account of cordial relations, they were blessed with two children and that the respondent-wife had to face difficulties since she is a working woman, therefore, the appellant-husband got her transferred to Manendragarh. It is also admitted by him that normally disputes and quarrels takes place between wife and husband. He has further admitted that owing to heavy work load, he used to reach his house belatedly and does not have the habit of consuming liquor. In para 11, he has admitted that respondent-wife was residing in the house of one Saloman on rent. In para 12, it is also admitted by him that respondent-wife, with his consent, got her sister admitted in the school where she is working. It is also admitted by him that from 2009 onwards, there was no dispute from the respondent-wife. The statement of this witness has duly been corroborated by the statements of PW-2 James Kujur and PW-3 Arvinda Beck in respect of allegations leveled by him against his wife.

Now, I shall deal with the evidence of respondent-wife, who has been examined as DW-1. With respect to the facts of marriage with the appellant-husband and out of their wedlock, they have been blessed with the two children, have not been disputed by her. She has stated that she has been appointed as Shiksha Karmi Grade-I on 21.07.1998 and was posted at Baikunthpur, Higher Secondary School. She has further deposed that as she had to face difficulties on account of her children being small, therefore, her husband got her transferred to Manendragarh from Baikunthpur and their marital life was also good at Manendragarh. She has also deposed that she never levelled any allegation with respect to character of the appellant-husband and never used to quarrel with appellant-husband despite he come to the house belatedly from office. It is also deposed by her that sister of the appellant-husband lives in village and has failed in class 10th twice and with the consent of the appellant-husband, she herself called her to Manendragarh and after pass-out of class 10th, she got her sister admitted in her school in class 11th. It has also come in her evidence that since she was taking care of her children including her sister-in-law, the behaviour of husband towards her has changed suddenly and used to hurl abuses on every occasion and that pressurized her to dissolve the marriage. On 14.04.2009, the appellant-husband again abused her and drove her out from the house, whereupon she made repeated requests, but the appellant-husband did not permit her to enter the house. Then only, one Pratibha Saloman offered her to stay at her house where she remained for a few days along with children. At the same time, appellant-husband was transferred to Pathalgaon, whereas she was staying with her children. It has been stated by her that the appellant, after apologizing before the Community Members, took her along with children to Manendragarh and since then she is staying with the husband and children at Manendragarh where their relations were cordial. The appellant used to visit them from Pathalgaon to Manendragarh and at present, her husband was transferred to Korba, even then he used to visit them, therefore, she is not willing to take divorce from him. She was subjected to cross-examination and in her cross-examination, she has admitted that their relationship was good from the year 1996 to 2008. She has admitted in para 8 that since her husband is only the earning member in his family, therefore, she never raised any dispute with the husband with respect to take care of his family. It has been admitted by her that she never quarreled with her husband with respect to send her sister-in-law, rather admitted that presence of her sister-in-law is necessary as she used to look after their children carefully. In para 11, she has further admitted that she has lodged the report against her husband for assaulting and hurling abuses. It is also admitted by her that she has compromised with her husband in respect of the above dispute, therefore, the case came to end, resulting in acquittal of the appellant-husband. In para 12, she has admitted that as her husband ousted her from the house after committing marpeet, then only she started living in the house of her neighbour Partibha Saloman, which shows that the respondent-wife never wanted to live separately from her husband and was always trying to discharge her matrimonial obligations.

The husband sought decree of divorce on the grounds of cruelty and desertion. In this regard, the Supreme Court in the matter of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, has observed thus in paras 6 and 9 :

“6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i -a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.

Following the decision in Bipinchandra case [AIR 1957 SC 176] this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.”

In Smt. Rohini Kumari Vs. Narendra Singh {AIR 1972 SC 459}, the Supreme Court held that desertion does not imply only a separate residence and separate living. It is also necessary that there must be a determination to put an end to marital relation and cohabitation.

Returning to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that marriage between the parties was solemnized on 27.05.1996 and their relations were cordial. Perusal of the evidence of appellant-husband would reveal that he used to have quarrels with the respondent-wife on trivial issues and used to level allegations against her even in small issues. Although, he has led oral evidence in detail to show that the respondent-wife subjected him with cruelty by suspecting his character, pressurized him to live separately from his family members, her forceful intrusion in his house in his absence and pressurized him to oust his sister from the house, but no evidence has been produced by him to substantiate his allegations. In fact, the allegations leveled by him are omnibus and there is no reason for this Court to believe his statement, in absence of any cogent and reliable evidence. On the other hand, from perusal of the evidence of respondent-wife, it appears that she is always ready and willing to live with the appellant-husband despite trivial issues raised by him. It is also evident from her evidence that despite she being a government employee, she never lost the opportunity in the matter of looking after her family including her sister-in-law and in performing her matrimonial obligations carefully even after the appellant leveled allegations against her. Although, on a report lodged by her, FIR (Ex.P-2) was registered against the appellant-husband under Sections 294, 506 and 498A of IPC, but a perusal contents of FIR would reveal that allegation of demand of dowry was not mentioned in the said report and the said report was only for committing marpeet. It is also pertinent to mention here that the case was compounded between the parties and the appellant was acquitted of the aforesaid charges. Furthermore, a perusal of statements of both the parties would reveal that only general and omnibus allegations have been leveled by the parties against each other, which is a common thing in every martial life and that in their cross-examination, they have admitted that their relations were cordial from the year 1996 to 2008 and that there was no dispute between them from the year 2009 onwards as admitted by them. The Family Court, considering the evidence and material available on record, held that the appellant-husband has failed to prove the allegations levelled by him against the respondent-wife, therefore, he is not entitled for a decree of dissolution of marriage and accordingly, dismissed his suit. Therefore, having overall assessment of the evidence, we are of the opinion that cruelty & desertion on which divorce was sought for have not been proved by the appellant-husband.

Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other spouse. Cruelty normally has to be distinguished from the ordinary wear and tear of family life and naturally it cannot be adjudged on the basis of the sensitivity of a particular person, when one of the parties to the marriage gives a self-certificate about conduct of the other regarding cruelty. Petty outrageous behavior or differences between the spouses does not come in the ambit of cruelty because this is something that is common in a day to day married life.

Being so, the finding arrived at by the learned Court below rejecting the decree of dissolution of marriage as sought for by the appellant-husband does not call for any interference.

In the result, the appeal filed by the appellant-husband being without any substance is liable to be dismissed and is, accordingly, dismissed.

A decree be drawn up accordingly.