Gunjan Kumar vs Abhilasha Singh

This is an Appeal by the husband/plaintiff under Section 19 of the Family Courts Act, 1984 challenging the judgment and decree dated 2.8.2017 passed by the Family Court, Manendragarh, District Koriya in Civil Suit No.55A/2012, whereby the suit preferred by the appellant under Section 13 (1)(i-a) (i-b) of the Hindu Marriage Act, 1955 has been dismissed by the learned Family Court.

The suit was preferred by the appellant on the ground that the parties were got married at Manendragarh on 27.4.2008 as per the Hindu rituals and customs. On 3.5.2008, they had proceeded for honeymoon and returned on 9.5.2008 to marital home at Kusmunda. Father of the appellant was in service at the time of marriage of the parties and was posted at Kusmunda. On 11.5.2008, after performing the rituals (Pooja) at the marital home of the respondent as per the custom of Duragaman, both had proceeded to the parental home of the respondent at Manendragarh. On 13.5.2008, they returned to the marital home at Kusmunda. The appellant was in service at Mumbai and was staying in a shared house with his friend, though he had booked a flat in the year 2007 in Lavender Apartment, Goregaon (East), Mumbai after taking loan from the LIC, but the possession of the said flat was not handed over to him and, therefore, he was staying with his friend as co-tenant. Due to non-availability of the proper accommodation at Mumbai, the appellant alone left for Mumbai after assuring the respondent/wife that as and when he gets possession of the flat, he would take her to Mumbai and asked her to stay at her marital home at Kusmunda. The respondent was not happy to stay at her marital home. Her behaviour was very rude towards her in-laws from very beginning and she never liked to stay with her in-laws at Kusmunda.

In August, 2009, parents and brother of the respondent visited the marital home of the respondent at Kusmunda and they abused the appellant and his parents in filthy language and also threatened them. On account of compelling circumstances created by the wife and her family members, the appellant took her to Mumbai. The wife was not comfortable in the shared accommodation and used to raise quarrel on petty matters and kept herself unconcerned with the household work. Most of the time, she used to be busy over mobile. On 11th September, 2009, possession of the flat was handed over to the appellant and on 25.11.2009, inauguration ceremony of the new house/flat was organized and on that occasion, parents of the appellant were also present. However, the respondent was annoyed with their presence.

On 8th December, 2009, the appellant was required to go to Australia for official purpose and most of the flats were under construction during that period, therefore, keeping in view the safety and security of the wife, the appellant had brought her back to Kusmunda on 5th December, 2009. On 13th December, 2009, parents of the wife after creating scene at her marital home, took her along with them. On 19th December, 2009, the appellant returned from Australia and asked the respondent/wife to accompany him to her marital home. On 20th December, 2009, the respondent along with her father and brother came to her marital home at Kusmunda and made false allegation against the appellant that he is having illicit relations with one lady namely, Monika Kapoor. On 11.2.2011, the respondent has lodged a police complaint (Ex.-P/1) to the PS Manendragarh, District Koriya against the appellant, his father, mother and married sister. The police authorities after making enquiry were reluctant to register any complaint against them. Thereafter on 10th May, 2011, the respondent has lodged a private complaint under Sections 498-A & 406 of the IPC read with Section 3 & 4 of the Dowry Prohibition Act against the appellant, his parents and married sister before the JMFC, Manendragarh vide Ex.-P/3.

The appellant and his family members were put to utmost mental agony and were required to run from pillar to post for release on bail. The appellant had to remain in jail custody for 3 days on false and baseless complaint. The respondent/wife has also filed a petition under the Domestic Violence Act and separate application for maintenance. Prior to the marriage, the respondent was working as a Reporter with TV Channel ‘Aaj Tak’. After the marriage, she had shown her willingness to continue with the said job for her own independent status. She had also made various false complaint/s to the CIL and WCL (Coal Authorities) i.e. the employer of father of the appellant only to ruin and lower down his image. On 20.12.2009, the respondent/wife has deserted her husband without any genuine or cogent reason as also for no fault on the part of the appellant. Therefore, the appellant has preferred the suit on the ground of cruelty and desertion for decree of divorce.

The respondent/wife has filed her written statement denying the plaint allegations. She has stated that from the very beginning of the marriage, the appellant was not interested in maintaining relationship. Father of the respondent/wife had given Rs.30 lakhs in cash, 30 Tolas gold jewellery and a diamond set etc. as dowry. Being dissatisfied, the appellant and his family further made a demand of Rs.30 lakhs for purchasing a flat and due to non-fulfillment of the said demands, the respondent/wife and her family members were humiliated and ill-treated. Further, the appellant was having close relations with another woman namely, Monika Kapoor. She has further pleaded that she was taken by her mother-in-law to Hyderabad with ulterior motive to the house of her sister-in-law where she had to stay for 2 months. The respondent/wife was shifted to Hyderabad with intention to keep her away from Mumbai till the dowry demands were fulfilled. Her sister-in-law had also taunted her that she has come from a poor house. Though father of the respondent made efforts to settle the issue, but his efforts went in vain, therefore, there was no alternative but to lodge a complaint against the appellant and his family members.

On the basis of averments made by the parties, issues were framed firstly, whether the respondent/wife has treated her husband with cruelty and secondly, whether the respondent has deserted him. After affording an opportunity of hearing to the parties, the learned family Court decided both the issues in negative by holding that the respondent has not committed any cruelty with the appellant nor deserted him and the suit was dismissed.

We have heard learned counsel for the parties, perused the judgment and record with utmost circumspection.

Learned counsel for the appellant submits that the appellant has proved the factum of cruelty and desertion. The respondent/wife has made false and baseless allegations about illicit relations of the appellant with his colleague Monika Kapoor. He further submits that the flat was purchased through housing loan which was sanctioned prior to the marriage by the LIC Housing Finance Limited on 19th March, 2008. There was no demand of dowry or ill-treatment by the appellant and his parents & married sister to the respondent/wife. Though the married sister was living at Hyderabad, but she was falsely implicated and the trial Court has also acquitted his sister-in-law vide judgment dated 16th May, 2019 passed in Criminal Case No.810/2016. However, the appellant and his parents were convicted by the trial Court under Section 498-A/34 & 406 of the IPC and Section 4 of the Dowry Prohibition Act. The said judgment was further challenged and is pending consideration in Appeal and the matter is not finalized yet and that the judgment of the criminal Court is not binding on the civil Court. Reliance is placed on the judgments rendered by this Court in the matters of Smt. Indra Meshram Vs. Bhanupratap Singh Meshram {FAM No.164/2018, decided on 8.3.2022} and Pratap Dahariya Vs. Smt. Girja Bai {FAM No.159/2019, decided on 4.7.2023}.

10.On the other hand, learned counsel for the respondent would support the impugned judgment. He submits that the learned family Court has rightly dismissed the suit and the finding recorded by the learned family Court is well merited and does not call for any interference. He further submits that the finding of the criminal Court is not binding on the civil Court but the same has its own persuasive value because the allegations between the parties were same which was the subject matter in both the proceedings.

11.In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. In the present case, the appellant has examined himself as PW-1, his father Ashok Kumar Singh (PW-2) and his friend Nitin Kumar as PW-3.

Per contra, the respondent/wife has examined herself, however, she has not adduced any other evidence.

13.Respondent/wife (DW-1) has deposed that her marriage with the appellant was solemnized on 27th April, 2008 at Manendragarh. At the time of marriage, her father has given Rs.30 lakhs in cash, 30 Tolas gold and diamond set, silver utensils, etc. as gift. In cross-examination at para-38, she has stated that the fact that her father had given Rs.30 lakhs came to her knowledge later on and she is not aware as to when the said money was given by her father and to whom. She has further stated that the amount was given in installments. Father of the respondent was not examined. She has deposed at para-28 that after the marriage, she was living at her marital home at Kusmunda from June, 2009 to 9th August, 2009 and during the said period, the appellant used to misbehave and commit Marpeet with her. She further deposed that her father-in-law has also slapped her, however, she has not made any complaint, as her father has assured that to save her married life, he would give Rs.30 lakhs from his retiral funds. At para-20, she has stated that her father was probably retired in the year 2012.

14.However, particulars of the funds as to from where at the time of marriage or thereafter the said money has been arranged, have not been produced and proved by the respondent/wife, which would be relevant evidence. The respondent/wife has also not proved the fact that during his service period, her father has made any part-final withdrawal or made any other arrangement from any other source. Therefore, the allegation of respondent/wife regarding demand of Rs.30 lakhs raised by her in-laws, in the opinion of this Court, remains doubtful and cannot be believed, as the respondent/wife has failed to prove the said fact by cogent and clinching evidence.

15.Though initially the complaint was made by the respondent/wife vide Ex.-P/1 on 11.02.2011 to the Superintendent of Police, District Koriya against the appellant, his parents, married sister-in-law, brother-in-law and Monika Kapoor, however, having gone through the entire complaint, we do not find any allegation or averment against the married sister-in-law, except the fact that her name was mentioned at the column of subject compliant. The respondent/wife has admitted in her cross-examination at para-19 that in the last week of July, 2008, she had gone along with her mother-in-law to the house of her sister-in-law at Hyderabad. She has further stated that her brother-in-law Amitabh (husband of her sister-in-law) had come to Hyderabad Railway Station to receive them. The respondent has also admitted the fact that on seeing them, her sister-in-law became happy and cheerful. However, she has not stated that her sister-in-law or her husband, in any manner, taunted her for any cause. In the absence of such averment or specific incident, the respondent has lodged a police complaint (Ex.-P/1) against the married sister-in-law and her husband, though their relations with the respondent appears to be cordial and sister-in-law has also been prosecuted and acquitted by the criminal Court vide its judgment dated 16.5.2019.

16.The respondent/wife has also made certain exaggeration in the initial complaint filed by her on 11.2.2011 to the police in which she has made a specific allegation against her father-in-law and mother-in-law that once they have threatened her that they would set her on fire. However, in the entire deposition, she has not disclosed or stated the said fact which shows that from the very beginning she has exaggerated her version.

17.At para-13 of her cross-examination, the respondent/wife has denied the fact that she has unnecessarily made suspicion about the relation of the appellant with Monika Kapoor. She admits that she is not aware as to in which office the said lady works. However, she has specifically stated that once she has found the said lady in an objectionable condition. But, it is very unnatural that when she caught the appellant and said Monika Kapoor red handed, she had not reacted in any manner. Even she has not returned to her parental home nor made any compliant to the husband of the said lady. The respondent has neither lodged any police complaint nor approached the Women Cell, though she stated that prior to the marriage, she was working as TV Reporter in a reputed TV Channel namely, ‘Aaj Tak’. The respondent has also not mentioned about the specific date, time and place when she found her husband and the said lady in an objectionable condition. It is significant that at the time of inaugural ceremony of the flat of the appellant, the said lady was also present to attend the ceremony. However, the respondent did not raise any objection regarding her presence and even she had not made any complaint to the close family friends of her husband, though the wife of Abhinav with whom she had good relations and mother of Nitin at Mumbai. It is common or natural reaction that if the wife finds her husband in such relations, then she would talk to the family members who normally visits her house.

18.Nitin Kumar (PW-3), friend of the appellant, has categorically explained the fact that in the same building, his family and the family of Monika Kapoor reside, and the appellant was also residing. He further stated that Monika Kapoor, appellant and he, had studied MBA together, so due to such intimacy, she used to come to the house of the appellant. Said Monika Kapoor was residing with her husband and a son, aged about 10 years. There were no otherwise relations between the appellant and Monika Kapoor.

19.The appellant (PW-1) has deposed that on 20th December, 2009, respondent along with her brother Abhishek and her father came to his house at Kusmunda and made false allegation about relations with Monika Kapoor and thereafter lodged a false complaint concerning dowry demand and cruelty on account of which he was also sent to the jail and they are living separate since 20th December, 2009.

20.Recently, in the matter of Rakesh Raman Vs. Kavita {2023 SCC OnLine SC 497}, the Hon’ble Supreme Court has held that a marriage which has been broken down irretrievably amounts to cruelty to both the parties.

21.In the case at hand, the marriage was solemnized in the year 2008 and regrettably, it did not take long for the marital discord to set in their marital life and they are living separate since 20th December, 2009.

22.In Rakesh Raman (Supra), the Hon’ble Supreme Court has made observations regarding establishment of cruelty at paras-16 to 18 which read thus:-

“16. Matrimonial cases before the Courts pose a different challenge, quite unlike any other, as we are dealing with human relationships with its bundle of emotions, with all its faults and frailties. It is not possible in every case to pin point to an act of “cruelty” or blameworthy conduct of the spouse. The nature of relationship, the general behaviour of the parties towards each other, or long separation between the two are relevant factors which a Court must take into consideration. In Samar Ghosh v. Jaya Ghosh . (2007) 4 SCC 511 a three judge Bench of this Court had dealt in detail as to what would constitute cruelty under Section 13(1)(ia) of the Act. An important guideline in the above decision is on the approach of a Court in determining cruelty. What has to be examined here is the entire matrimonial relationship, as cruelty may not be in a violent act or acts but in a given case has to be gathered from injurious reproaches, complaints, accusations, taunts, etc. The Court relied on the definition of cruelty in matrimonial relationships in Halsbury's Laws of England (Vol 13, 4 Edn, Para 1269, Pg 602) which must be reproduced here:

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.”

The view taken by the Delhi High Court in the present case that mere filing of criminal cases by the wife does not constitute cruelty as what has also to be seen are the circumstances under which cases were filed, is a finding we do not wish to disregard totally, in fact as a pure proposition of law it may be correct, but then we must also closely examine the entire facts of the case which are now before us. When we take into consideration the facts as they exist today, we are convinced that continuation of this marriage would mean continuation of cruelty, which each now inflicts on the other. Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is. A marriage can be dissolved by a decree of divorce, inter alia, on the ground when the other party “has, after the solemnization of the marriage treated the petitioner with cruelty” 1955. In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13(1)(ia) of the Act.

Cruelty has not been defined under the Act. All the same, the context where it has been used, which is as a ground for dissolution of a marriage would show that it has to be seen as a ‘human conduct’ and ‘behavior” in a matrimonial relationship. While dealing in the case of Samar Ghosh (supra) this Court opined that cruelty can be physical as well as mental:—

“46…If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.”

23.In the matter of K. Srinivas Rao Vs. D.A. Deepa {(2013) 5 SCC 226} wherein the instances illustrative of mental cruelty noted in Samar Ghosh  Vs.  Jaya  Ghosh (2007) 4 SCC 511,  the  Hon’ble  Supreme  Court  further observed in para-16 about making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the Court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.

24.In view of the above settled legal position, if we examine the facts of the present case, we find that except the evidence of the respondent, there is no other evidence to prove that the appellant has illicit relations with Monika Kapoor, though the respondent has made serious allegations and made character assassination against her husband/appellant that he is having illicit relations with another lady, but the same was not found proved. In the circumstances, we hold that such indecent and defamatory allegations against the spouse amounts to cruelty.

25.Further, the respondent/wife has also made baseless allegations against her married sister-in-law and her husband, though they are living separate at Hyderabad and the respondent has roped them in a matrimonial dispute and launched criminal prosecution against her married sister-in-law. Demand of Rs.30 lakhs has also not been established.

26.In view of the law laid down by the Hon’ble Supreme Court in the matter of Samar Ghosh (Supra), we hold that the matrimonial bond is completely broken and the same is beyond repair, and such relationship must end on account of long separation and absence of cohabitation and complete break down of matrimonial bond.

27.For the foregoing, we are of the opinion that findings recorded by the learned Family Court are not sustainable and the same warrant interference by this Court.

28.In the result, the Appeal is allowed and the impugned judgment passed by the learned family Court is set aside. The marriage between the parties solemnized on 27.4.2008 is hereby dissolved and decree of divorce in favour of the appellant is granted.

29.Parties shall bear their own costs.

30.A decree be drawn up accordingly.