Dhruv Singh vs Yagyavanti @ Radha

M.K. Mudgal, J.—This first appeal has been preferred by the plaintiff/appellant u/s 28 of the Hindu Marriage Act, 1955 being aggrieved by the judgment and decree dated 25.09.2009 passed by the Court of Third Additional District Judge, District Morena (Shri K.K. Sharma) in Case No. 87/08 whereby the application filed by the appellant for divorce u/s 13 of Hindu Marriage Act has been dismissed. The admitted facts are that on 15.2.1996 the marriage of the appellant/plaintiff with the respondent was solemnized according to Hindu rituals and customs at Agra. Earlier a suit No. 49A/98 Ex-P/1 u/s 9 of the Hindu Marriage Act for restitution of conjugal rights was filed by the plaintiff on 11.7.98 and it was dismissed on 29.6.2000 vide Ex-P/2 in the absence of the plaintiff. The defendant filed a petition u/s 125 of the Cr.P.C. M.J.C. No. 111/02 for maintenance against the plaintiff in the Family Court at Agra in the year 2002 which was decided through compromise between the parties in the year 2004. In this appeal, the appellant is referred as ''plaintiff'' and the respondent as ''defendant''.

The facts of the case are that at the time of marriage father of the appellant/plaintiff gave to the defendant wedding articles (gold and silver ornaments).The behaviour of the defendant was not proper with the plaintiff and his family members since marriage. Even the defendant never discharged the duty of a wife and did not cohabit with the plaintiff. The defendant always threatened the plaintiff and his family members to implicate them in a false criminal case. The defendant refused to stay with the plaintiff and left him in January 1998 and did not come back on 5.6.98 when she was requested last by the plaintiff to come back. Thereafter, the plaintiff filed an application on 11.7.98 for restitution of conjugal rights bearing Case No. 55A/98 which was dismissed due to non-appearance. It was further mentioned by the plaintiff in the plaint that the defendant filed an application u/s 125 of Cr.P.C. bearing Case No. 111/02 in the Family Court at Agra claiming maintenance. In that case the parties entered into a compromise as the defendant was ready to live with the plaintiff. Subsequently, the defendant came back to the plaintiff''s house and began to reside with him. Thereafter out of the cohabitation of the parties the defendant gave birth to a male child on 21.7.2005 and she continued to live peacefully with the plaintiff till February, 2006. Thereafter, the defendant started misbehaving with the plaintiff and his family members and ultimately on 30.6.2006 she left the plaintiff''s house without telling anybody about it taking jewellery with her and did not return. She was searched for but was not found and so a report was lodged at the Police Station Banmore on 1.7.2006. Thereafter on 3.7.2006 the appellant got the information that the defendant had gone to her parental house. The plaintiff went to his in-laws house to bring her back to his house but she refused to do so on 20.8.2008 and in this way she deserted the plaintiff without any reason. Due to this act of defendant, the plaintiff was deprived of his conjugal rights. Hence, the plaintiff filed a suit as stated above for granting the decree of divorce against the defendant on the ground of cruelty and desertion.

Denying the plaint averments the defendant filed the written statement stating therein that since the date of her marriage the plaintiff and his family members had been continuously treating her with cruelty. They did not permit her to use the jewellery given by her father. In November 1996 her father-in-law Jagman Singh assaulted her and raped her in the absence of her husband. When she complained about this to her husband she was brutally beaten by her husband and other in-laws. Thereafter on 17.8.97 she was taken by her husband and dropped at her parental house without any reason. Her husband and her father-in-law sternly told her to bring a motorcycle and Rs. 31,000/- from her father when she return. Hence, the defendant was compelled to file the suit for maintenance in the year 2002. When she did so the plaintiff agreed to live with her and the matter was settled on 17.9.04 and she was taken back by the plaintiff on 26.9.04. In the year 2005, the defendant gave birth to a male child. Thereafter her husband and his family members again began to misbehave with her and on 4.7.06 she was dropped by her husband at her parent''s house since then she has been residing with her father along with her son. The plaintiff is not a man of good character and he has illicit relationship with other women. The defendant has never deserted the plaintiff. On the other hand, she has been deserted by the plaintiff without any proper reason. Hence, the plaintiff is not entitled to get any relief as prayed for in the suit and the suit filed by the plaintiff deserves to be dismissed.

The learned trial Court after framing five issues and recording evidence and having discussed the evidence dismissed the suit.

The following questions crop up for consideration in this appeal:--

Whether the defendant''s behaviour has been cruel with the plaintiff and his family members and owing to which the plaintiff''s living with the defendant is not possible?

Whether the defendant has deserted the plaintiff without any proper reason?

Whether the findings recorded by the learned trial Court are not based on proper reasonings?

Learned counsel for the appellant after taking this Court through the record alongwith with the judgment of the Court below by referring the Apex Court judgment V. Bhagat Vs. Mrs. D. Bhagat, and U. Sree Vs. U. Srinivas, has contended that the respondent has deserted the appellant for a long period without any plausible reasons and has not been performing the duty as wife of the appellant and depriving of his conjugal rights. The counsel further submitted that by adducing the statements of three witnesses the appellant/plaintiff has successfully proved the cruelty having been committed by the defendant. Despite the fact that the learned trial Court has committed a gross mistake in dismissing the said suit for divorce. The learned counsel further has urged that the impugned judgment and decree be set aside and the suit filed by the plaintiff be decreed for divorce in favour of the plaintiff.

Heard the arguments and perused the record.

The word cruelty is not defined in the Hindu Marriage Act. This Court in Sukhram Yadav Vs. Smt. Nirupama Yadav, defining the meaning of cruelty, has opined as under:--

No hard and fast rule can be laid down as to what acts or conduct will amount to cruelty in any given case. What may amount to cruelty in one case may not amount to cruelty in another case. In deciding whether or not a particular state of affairs amounts to legal cruelty, the Court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and manners of the parties. Whether acts and conduct complained of constitute cruelty have to be construed in reference to the whole matrimonial relationship. It may be that various acts or conduct complained of, by itself and in isolation to each other, do not amount to cruelty, but in their overall effect they may amount to cruelty.

The similar view has been expressed by the Hon''ble Apex Court in para 17 of V. Bhagat Vs. Mrs. D. Bhagat, is as follows:--

The mental cruelty of such a nature that the parties cannot reasonably be expected to live together. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner and regard must be had to the social status educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively.

And further recently the Apex Court has also held in U. Sree Vs. U. Srinivas, in para 20 has held as under:--

Recently, this Court, in Vishwanath Agrawal Vs. Sau. Sarla Vishwanath Agrawal, , while dealing with the conception of cruelty, has stated that it has inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperament and emotions that have been conditioned by the social status. The two judge Bench referred to the decisions in Sirajmohmedkhan Janmohamadkhan Vs. Hafizunnisa Yasinkhan and Another, , V. Bhagat Vs. Mrs. D. Bhagat, , Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, , A. Jayachandra Vs. Aneel Kaur, Vinita Saxena v. Pankaj Pandit, (2009) 1 SCC 422, Samar Ghosh (supra) and Suman Kapur Vs. Sudhir Kapur, and opined that when the evidence brought on record clearly establish a sustained attitude of causing humiliation and calculated torture on the part of the wife to make the life of the husband miserable, it would amount to mental cruelty. Emphasis was laid on the behavioral pattern of the wife whereby a dent is created in the reputation of the husband, regard being had to the fact that reputation is the salt of life.

The plaintiff has produced the statements of three witnesses namely Dhruv Singh (PW/1), Nattha Singh Yadav (PW/2) (brother of the plaintiff), Netram (PW/3) under Order 18 Rule 4 of the C.P.C. On perusal of the statements, it transpires that the statements of the witnesses have been produced as just a replication of the averments of the plaint. As per the statements of the said witnesses and averments of the plaint, the plaintiff and the defendant made a compromise in pending case u/s 125 of Cr.P.C. before the Agra Court in the year 2004. As per para 19 and 20 of the plaintiff''s statement, it has come on record that after the compromise the defendant had stayed with the plaintiff and a child was born to them on 21.7.05. The facts and circumstances narrated by the plaintiff and his witnesses before the said compromise have no importance to prove the cruelty. The compromise between the parties reveals the fact that if there had been any such differences between them were patched up and forgotten. Thus the evidence regarding the cruelty before the compromise does not lead to the conclusion justifying grant of divorce.

Now this Court has to consider in the instant case whether the defendant''s behaviour continued to be cruel with the plaintiff and his family members even after the compromise i.e. 2004 and separation from her matrimonial house in July, 2006. In this connection, on perusal of the plaint, it becomes clear that the averments stated in the plaint upto para 1 to 6 are related to the story as disclosed before the compromise and the birth of the child but in para 7 no concrete causes and facts have been stated so as to conclude about the cruelty having been shown by the defendant. As per para 7 and 8 of the plaint, the allegations made against the defendant are not only superficial but also vague in nature. On the basis of these aforesaid facts, no conclusion can be drawn regarding the cruelty of the defendant. Further, it is not on the record that the defendant ever made any complaint in the police station or any public forum against the plaintiff or his family members for harassing her. Even in the statements of the plaintiff witnesses no solid and sound reasons have been given so as to show the cruel behaviour of the defendant.

The plaintiff earlier filed a petition on 11.7.98 u/s 9 of the Hindu Marriage Act Ex-P/1 for conjugal rights wherein no specific charges of cruelty on the part of the defendant have been stated. That petition was rejected vide order dated 29.6.2000 Ex-P/2 in the absence of the plaintiff.

On behalf of the plaintiff, no substantial evidence has been produced on record to prove the allegations levelled against the defendant in respect of cruelty. The plaintiff himself has not stated any concrete facts in his statement that prove cruelty and brutality after the compromise in the year 2004 and the birth of the child in the year 2005.

The plaintiff has further stated that the defendant left his house of her own on 30.6.2006 without informing the plaintiff and his family members but the defendant has vehemently rebutted the said allegations in her pleadings as well as in her statement deposing that she was dropped deliberately at her father''s house by her husband and his family members in the month of July, 2006. During the cross-examination of the defendant''s statement nothing has come on record so as to disbelieve her testimony and fidelity to her husband. Though, the plaintiff has tried to say that he and his family members made an attempt to bring the defendant back home but she expressed her unwillingness to return from her matrimonial house yet the said fact does not appear to be acceptable as in para 23 of the plaintiff''s statement, he has not disclosed any date on which he and his brother went to bring her back. Similarly his brother Nattha Singh (PW/2) has also not specifically mentioned any date in his statement. The PW/2 being brother of the plaintiff has deposed the statement in support of his brother, but substantially his evidence is not credible as the witness PW/2 resides in the village Baraipura whereas the plaintiff and his wife resided at Banmore.

The statement of Netram (PW/3) seems to be incredible as the said witness also resides in the village Baraipura and his knowledge about the family relation of the plaintiff and defendant who were residing at Banmore cannot be as adequate as it should have been. Moreover, he has not deposed in his statement any particular incident of cruelty of the defendant after the compromise and birth of the child. In para 11 of the statement, it has come on record that he is an illiterate person and he has not got the dates written in his affidavit, it might have been written by the advocate. These facts and circumstances revel that the statement of the witness in the affidavit was not prepared at the behest of the witness (PW/3) and so his evidence does not carry any weight in this regard.

Rebutting the plaintiff''s statement, the defendant (DW/1) and her father (DW/2) have deposed in their statements that the defendant has not misbehaved with her husband and his family members and she did not leave the house of her in-laws of her own, but was deliberately dropped by the plaintiff at her father''s house. Nothing has come on record during the cross-examination in their statements to discredit their testimony. If the defendant had voluntarily deserted the plaintiff''s house why the plaintiff did not file any application u/s 9 of the Hindu Marriage Act for restitution of conjugal rights. Admittedly, it was not done so by the plaintiff. In view of the facts, it becomes clear that the defendant herself has not deserted the plaintiff rather she was dropped and deserted by the plaintiff. The plaintiff himself is at fault and so cannot avail the benefit of getting divorce from his spouse.

The learned counsel for the appellant has strenuously contended that the defendant has levelled the false charges against the plaintiff''s father without any basis in para 3 of the written statement and in para 18 of her statement that his father forcibly performed sex with her. This allegation not only tarnishes the image of the plaintiff and his family but also comes under the purview of mental cruelty to the plaintiff. In the light of which, it is not possible for the plaintiff to live together with the defendant. Considering the aforesaid submissions, it appears that the said allegation levelled by the defendant against the plaintiff''s father is of a serious nature. However, it cannot be a sufficient ground to pass a decree for divorce as the plaintiff''s father did not turn up before the Court to rebut the said allegation. Therefore, the so called charge cannot be considered as a sufficient reason for passing a decree for divorce.

The learned counsel has further pleaded that the defendant has admitted in para 22 in her statement that she has been living with her father happily and so it may be inferred that the defendant does not want to live with the plaintiff. This contention is not acceptable as the defendant has never stated in para 22 or in the cross-examination that she does not want to live with the plaintiff. On the contrary, she has expressed her desire to stay with her husband.

Considering the aforesaid facts and circumstances in the instance case, it is concluded that the learned trial Court has judiciously examined and appreciated the evidence produced by both the parties and has rightly dismissed the suit. The impugned judgment being found flawless does not require any interference. Hence, affirming the findings of the impugned judgment, the appeal being meritless and devoid of credence is, hereby, dismissed. The cost of the appeal shall be borne by the appellant to the defendant.

Decree be drawn up accordingly.