Churaman Mahto vs Baso Devi, W/o-Churaman Mahto

Sujit Narayan Prasad, J

Prayer

The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the order/judgment dated 05th December, 2023 (decree signed on 21.12.2023) passed by the learned Principal Judge, Family Court, Hazaribagh in Original Suit No. 276 of 2022, whereby and whereunder, the petition filed under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 by the appellant/petitioner seeking a decree of divorce against his wife, has been dismissed and exemplary cost of Rs.20,000/-has been imposed upon the appellant-husband, which was to be paid by way of DD, in the name of respondent-wife, within one month.

Factual Matrix

The brief facts of the case leading to filing of the divorce petition by the appellant/petitioner needs to be referred herein as under:

It is the case that the parties are legally married husband and wife and their marriage was solemnized on 13.03.2001 as per Hindu Rites and Customs at village-Khairatari, P.O. and P.S.-Barkagaon, District-Hazaribagh, within the jurisdiction of the Court. Marriage was not consummated. There is no issue out of wedlock. The parties have been living separately.

It is the further case that the respondent-wife had filed Maintenance Case No.68 of 2007, in which, maintenance was allowed @ Rs.2,000/- per month. The respondent-wife has also lodged dowry-cruelty which has been concluded.

It is the case of the appellant/petitioner that the respondent-wife refused to lead conjugal life in spite of best effort and has deserted him, due to which, he has been undergoing mental depression. Hence, by claiming cause of action etc., the petitioner husband prayed for divorce on the ground of cruelty and desertion.

After notice, the respondent-wife appeared in the suit on 01.06.2023 but has not filed written statement. She has cross-examined, the P.Ws and also adduced herself as R.W. In course of hearing, she has virtually been contested the case without written statement.

It is evident from the factual aspect that the appellant/petitioner had a motion by filing a petition under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 for decree of divorce on the ground of cruelty and desertion.

After taking into consideration the pleading of the parties, the learned Family Court has framed altogether five issues which are as follows:-

(i) Whether the suit as framed is maintainable in its present form?

(ii) Whether the parties are legally married husband-wife?

(iii) Whether the respondent-wife treated the petitioner-husband with cruelty after marriage?

(iv) Whether the respondent-wife deserted the petitioner-husband?

(v) Whether the petitioner-husband is entitled for a decree of divorce on the ground of cruelty and desertion or any other relief/reliefs?

The evidences have been led on behalf of both the parties. Thereafter, vide order dated 05.12.2023, the judgment has been passed dismissing the suit by holding that none of the ground either of cruelty or desertion has been established by the appellant/petitioner, which is the subject matter of the present appeal.

Submission of the learned counsel for the appellant/petitioner:

It has been contended on behalf of the appellant/petitioner that the factual aspect which was available before the learned Family Judge supported by the evidences adduced on behalf of the appellant/petitioner has not properly been considered and as such, the judgment impugned is perverse, hence, not sustainable in the eyes of law.

It has also been contended that the learned Family Court has failed to take into consideration the fact that the appellant-husband and respondent-wife are living separately without any sufficient reason since, 2003.

It has been submitted that the appellant-husband has tried much to bring the respondent-wife from her parental house to keep her with full dignity and responsibility.

Further, at paragraph-14, she has clearly deposed that she has remained only one and a half year in her matrimonial house and at para-11, she has deposed that she is living at her parental house for 12 years.

Therefore, it has been submitted that the issue of cruelty and desertion has not been taken into consideration in right perspective by the learned Family Court.

Learned counsel for the appellant/petitioner, based upon the aforesaid grounds, has submitted that the judgment impugned suffers from perversity, as such, not sustainable in the eyes of law.

Submission of the learned counsel for the respondent-wife:

Per contra, learned counsel for the respondent-wife, while defending the impugned judgment, has submitted that there is no error in the impugned judgment. The learned Family Judge has considered the issue of cruelty and desertion and having come to the conclusion that no cogent evidence has been adduced to establish either cruelty or desertion, has dismissed the petition.

It has been contended that after 1-2 months of marriage, there was further demand of dowry.

It has further been submitted that the respondent-wife has been examined by the learned court where she has clearly deposed at paragraph-14 of her deposition that the appellant-husband has never developed relation as husband.

It has further been contended that the appellant-husband was always teasing her for complexion lady and lastly, she has been ousted.

It has been submitted that the appellant/petitioner has tried to mislead the Court by filing application on the misleading ground of committing cruelty by the wife upon the husband.

Learned counsel, based upon the aforesaid grounds, has submitted that if on that pretext, the factum of cruelty and desertion has not been found to be established, based upon which the decree of divorce has been refused to be granted, the impugned judgment cannot be said to suffer from an error.

Analysis:

This Court has heard the learned counsel for the parties and gone through the finding recorded by the learned Family Judge in the impugned judgment.

The case has been heard at length. The admitted fact herein is that the suit for divorce has been filed on the ground of cruelty and desertion, i.e., by filing an application under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 and accordingly, issues have been framed wherein primarily issue nos.(iii) and (iv) pertain to cruelty and desertion.

The evidence has been led on behalf of both the parties, i.e., the appellant/petitioner-husband and the respondent-wife. For ready reference, the evidences led on behalf of the parties are being referred as under:

The petitioner-husband has adduced the following PWs:-

P.W.1, namely, Tulsi Mahto (father of the petitioner-husband)

P.W.2, namely, Padum Mahto (co-villager of petitioner-husband)

P.W.3, namely, Parmeshwar Mahto (co-villager of petitioner-husband).

P.W.4, namely, Churaman Mahto (petitioner himself)

All four P.Ws., i.e., P.W.1 to P.W.4 filed their respective examination-in-chief in support of the case of the petitioner husband.

The respondent-wife has adduced herself as sole R.W.

No documentary evidence has been filed by either side.

(i) P.W.1, namely, Tulsi Mahto (father of the petitioner-husband) has stated in his cross-examination that he was in favour of resumption of conjugal life of the parties. No panchayati took place after respondent-wife left matrimonial house. She lived in her matrimonial house for 2-3 months only. Thereafter, she has been living in her parental house. He cannot say whether the petitioner-husband has been paying maintenance or not. The petitioner-husband was never treated by any phychiatrist.

(ii) P.W.2, namely, Padum Mahto (co-villager of petitioner-husband) has deposed in his cross-examination that after 2-4 months of marriage, the parties were separated. Once panchayati took place and bond was prepared but does not know about the decision.

(iii) P.W.3, namely, Parmeshwar Mahto (co-village of petitioner-husband) has deposed in his cross-examination that the respondent-wife lived in her matrimonial house for 2-3 months only and thereafter, she went away to her parental house. Later, she lived in her matrimonial house for 1-2 days. She never treated the petitioner-husband with cruelty in his presence. Panchayati took place but no document was prepared. The respondent-wife has lodged dowry case against her husband and in-laws.

(iv) P.W.4, namely, Churaman Mahto (petitioner himself) has deposed in his cross-examination that respondent is his wife. The marriage was solemnized on 13.03.2001. His wife lived in her matrimonial house for two months only. After leaving matrimonial house, she lodged dowry-cruelty case. He has been paying maintenance to the respondent-wife. He has gone to parental house of respondent-wife for ‘Bidai’. Panchayati took place. No document was prepared.

The respondent-wife has also been examined as R.W.-1. For ready reference, her evidence is being referred as under:

(i) R.W., namely, Baso Devi (respondent-wife herself) has deposed in her examination-in-chief that after 1-2 months of marriage, there was further demand of dowry. Her husband was branding her as black complexion lady. Lastly, she was ousted. Panchayati took place at parental village where the husband undertook to keep her properly. She resumed conjugal life but after assault, she was again ousted from matrimonial house. She lodged dowry-cruelty case, which was culminated into conviction.

She has lodged Maintenance case no.68/2007. Maintenance @ Rs.2,000/- was allowed. Husband-petitioner has not been paying maintenance. After compromise, her husband-petitioner took her to her matrimonial house, but later she was ousted. Since then, she has been living in her parental house (period not made clear). Petitioner-husband has also contacted second marriage. She is willing to resume conjugal life.

In her cross-examination, she has deposed at para-14 that she lived in her matrimonial house for 1½ years. For about 12 years, she has been living in her parental house. There is no issue. During her stay at her matrimonial house for 1½ years, petitioner-husband refused food from her hand nor established conjugal relationship. Her dowry-cruelty case has ended. 3-4 times petitioner-husband took her to matrimonial house from the court, but was not providing sufficient maintenance and necessities. About 3 years back also petitioner-husband took her to matrimonial house. She lived there for 2-3 years.

Further, she has deposed that petitioner-husband has contacted second marriage with one Basanti Devi. She has not seen second marriage. She neither has got photo nor paper of second marriage. Uncle-in-law Budh informed regarding second marriage of petitioner-husband and further informed that petitioner-husband had actually gone for marriage negotiation of his sister but contacted own marriage.

The learned Family Judge has gone into the interpretation of the word “cruelty” and “desertion” and assessing the same from the evidences led on behalf of the parties as also the submission made in the pleading, i.e., plaint, has found that the element of cruelty and desertion could not have been established and accordingly, dismissed the suit, against which, the instant appeal has been filed.

The learned counsel for the appellant/petitioner has argued that the evidence of cruelty and desertion has not properly been considered and as such, the judgment suffers from perversity, hence, not sustainable in the eyes of law.

While on the other hand, argument has been advanced on behalf of the respondent that the judgment is well considered one and merely by committing fraud, the suit for divorce has been filed.

This Court while appreciating the argument advanced on behalf of the parties on the issue of perversity needs to refer herein the interpretation of the word “perverse” as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206, while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:

“24. The expression “perverse” has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression “perverse” means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.

In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that “perverse finding” means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.

In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined “perverse” as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.

The expression “perverse” has been defined by various dictionaries in the following manner:

Oxford Advanced Learner's Dictionary of Current English, 6th Edn.

“Perverse.—Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.”

Longman Dictionary of Contemporary English, International Edn.

Perverse.—Deliberately departing from what is normal and reasonable.

The New Oxford Dictionary of English, 1998 Edn.

Perverse.—Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.)

Perverse.—Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.

Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.

“Perverse.—A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.””

The ground for divorce has been taken of cruelty and desertion. The “cruelty” has been interpreted by the Hon’ble Apex Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326 wherein it has been laid down that the Court has to enquire, as to whether, the conduct charge as cruelty, is of such a character, as to cause in the mind of the petitioner, a reasonable apprehension that, it will be harmful or injurious for him to live with the respondent.

This Court, deems it fit and proper to take into consideration the meaning of ‘cruelty’ as has been held by the Hon’ble Apex Court in Shobha Rani v. Madhukar Reddi, (1988)1 SCC 105 wherein the wife alleged that the husband and his parents demanded dowry. The Hon’ble Apex Court emphasized that “cruelty” can have no fixed definition.

According to the Hon’ble Apex Court, “cruelty” is the “conduct in relation to or in respect of matrimonial conduct in respect of matrimonial obligations”. It is the conduct which adversely affects the spouse. Such cruelty can be either “mental” or “physical”, intentional or unintentional. For example, unintentionally waking your spouse up in the middle of the night may be mental cruelty; intention is not an essential element of cruelty but it may be present. Physical cruelty is less ambiguous and more “a question of fact and degree.”

The Hon’ble Apex Court has further observed therein that while dealing with such complaints of cruelty it is important for the court to not search for a standard in life, since cruelty in one case may not be cruelty in another case. What must be considered include the kind of life the parties are used to, “their economic and social conditions”, and the “culture and human values to which they attach importance.”

The nature of allegations need not only be illegal conduct such as asking for dowry. Making allegations against the spouse in the written statement filed before the court in judicial proceedings may also be held to constitute cruelty.

In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the wife alleged in her written statement that her husband was suffering from “mental problems and paranoid disorder”. The wife’s lawyer also levelled allegations of “lunacy” and “insanity” against the husband and his family while he was conducting a cross-examination. The Hon’ble Apex Court held these allegations against the husband to constitute “cruelty”.

In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6 SCC 334 the Hon’ble Apex Court has observed by taking into consideration the allegations levelled by the husband in his written statement that his wife was “unchaste” and had indecent familiarity with a person outside wedlock and that his wife was having an extramarital affair. These allegations, given the context of an educated Indian woman, were held to constitute “cruelty” itself.

The Hon’ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742, has been pleased to observe that while judging whether the conduct is cruel or not, what has to be seen is whether that conduct, which is sustained over a period of time, renders the life of the spouse so miserable as to make it unreasonable to make one live with the  other.  The  conduct  may  take  the  form  of  abusive  or  humiliating treatment, causing mental pain and anguish, torturing the spouse, etc. The conduct complained of must be “grave” and “weighty” and trivial irritations and normal wear and tear of marriage would not constitute mental cruelty as a ground for divorce.

Since, the appellant husband has also raised the issue of desertion therefore the definition of “desertion” is required to be referred herein as defined under explanation part of Section 13 of Hindu Marriage Act 1955 which 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 willful neglect of the petitioner by the other party to the marriage.

Rayden on Divorce which is a standard work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:

“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.”

The legal position has been admirably summarised in paras-453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.), Vol. 12, in the following words:

“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. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least two years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.

It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end.

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. In such a situation, the party who is filing for divorce will have the burden of proving those elements.

Recently also, the Hon'ble Apex Court in Debananda Tamuli vs. Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of ‘desertion’ on the basis of the judgment rendered by the Hon'ble Apex Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by the Hon'ble Apex Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act 68 of 1976. The said Explanation reads thus:

“13. Divorce.—(1) …

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 expressions shall be construed accordingly.”

This Court, on the premise of the interpretation of the word “cruelty” and “desertion” has considered the evidences of the witnesses as has been incorporated by the learned Court in the impugned judgment.

It has been alleged therein that the marriage was not consummated but there is neither pleading nor any evidence that the marriage was not consummated for fault of the respondent-wife, rather, the respondent-wife has specifically stated that she has been branded as a lady of not decent look by the appellant-husband.

Further, it is evident from the record that panchayati took place at the parental home wherein the appellant husband had undertaken to keep the respondent-wife properly and thereafter, they resumed their conjugal life but after assault, she was ousted from matrimonial house.

Thus, from the aforesaid, it is evident that the respondent-wife was herself subjected to cruelty by the appellant husband and she was compelled to leave the matrimonial house.

This Court, therefore, is of the considered view that the learned Family Court has rightly disbelieved the ground of cruelty as has been taken by the appellant-husband.

The desertion has also been taken as a ground but the desertion has been defined and interpreted by the Hon’ble Apex Court that the desertion will be said to be desertion if either of the party, on his/her own wish, has left the matrimonial house. But no concrete evidence has been produced by the appellant/petitioner to prove the element of desertion showing that the respondent-wife has left her matrimonial house on her own wish and without any valid reason.

From the perusal of impugned judgment, it is evident that the learned Family Judge, on consideration of both the issues at depth, has not found the ground for dissolution of marriage as alleged and accordingly, dismissed the suit.

This Court, based upon the aforesaid discussions, is of the view that the appellant/petitioner has failed to establish the element of perversity in the impugned judgment as per the discussion made hereinabove, as such, the instant appeal deserves to be dismissed.

Accordingly, the instant appeal fails and is, dismissed.

Pending interlocutory application(s), if any, also stands disposed of.