Khemlata Chouhan vs Ratan Lal

Radhakishan Agrawal, J

The instant appeal is against the judgment and decree dated 30.10.2014 passed in Civil Suit No.08-A/2013 by the Family Court, Korba, District Korba Chhattisgarh whereby application under Section 13(1)(i-a)(i-b) as well as Section 27 of the Hindu Marriage Act, 1955 (for short 'Act of 1955') filed by the wife seeking a decree of divorce on the ground of cruelty and desertion was dismissed, but the learned Family Court has directed to return of Stridhan.

The present appeal is by the wife.

The appellant/wife filed a petition for divorce stating inter-alia that she was married to Ratan Lal prior to seven years at village Katainaar, District Korba as per Hindu customs. After the marriage, she joined the company of husband. It was stated that up-till 4 years after the marriage, the relations between them were cordial, but subsequently, she alleged that husband and her in-laws were demanding dowry and subjected her to physical harassment and mental cruelty, therefore, the situation became aggravated day by day. It is further pleaded that quarrels and fighting between the parties had become regular phenomena and on 23.10.2009, the husband forcibly dropped her in her maternal house. The husband also threatened her her parents on demand of dowry. It is pleaded that despite the efforts made by elders and relatives, the husband was not ready to improve his behavior, therefore, it would be difficult to restore harmony/cordial relations between them. It was also pleaded that because of assault and torture, she was forced to leave the house and was threatened to her life. It is further submitted that because of such misbehaviour and cruelty, it would be difficult for her to say with him and maintained marital relations. On these grounds, the decree of divorce was sought for.

Appellant/wife also filed an application under Section 27 of the Act of 1955 for return of her Stridhan amounting to Rs.1,70,480/- as also certificates of her educational qualifications before the Family Court, which was partly allowed.

Per contra, the respondent/husband, in his reply, denied all the allegations and stated that without any rhyme and reason, the wife deserted the company of husband. It is further stated that he made several efforts to get back the wife, but she did not accede to his request and without any sufficient cause started living continuously at her parental home. It is also stated that he and his family members did not pressurize the appellant on account of demand of dowry and he made efforts for further study of his wife. It is further pleaded that in his community, there was no dowry culture and no demands of dowry was raised by him. He also denied the allegations of harassment and torture levelled by the wife and she is not entitled for any relief.

The learned Family Court framed the issue on the ground of cruelty and desertion. The answer was given in negative. The Court held that the wife is not entitled to get decree of divorce, however, partly allowed the application filed under Section 27 of the Act of 1955 for returning Stridhan of the appellant/wife. No cross-appeal was filed by the respondent/husband against the order relating to return of Stridhan.

The appellant/wife examined herself as PW-1, her father Gokul Prasad as PW-2 and one Neeraj Kumar as PW-3 whereas the respondent/husband examined himself as DW-1, his father Budhram as DW-2 and one Ajor Singh as DW-3.

Learned counsel for the appellant/wife would submit that the learned Family Court erred in holding that wife was not being physically and mentally subjected to cruelty by the husband on account of demand of dowry. He would further submits that the wife was treated with cruelty as she was subjected to physical and mental assault, therefore, she was forced to leave the matrimonial house. It is contended that impugned judgment and decree passed by Family Court cannot be sustained and deserves to be set aside.

Per contra, learned counsel for the respondent/husband would submit that the impugned judgment and decree passed by the Family Court is well merited, which do not call for any interference.

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

During the pendency of this appeal, the appellant has filed an application for taking additional documents on record under Order 41 Rule 27 of the CPC.

A perusal of the said application shows that copy of evidence of Khemlata Chouhan was annexed, which was recorded in the Court of Judicial Magistrate First Class, Katghora. The said evidence is not relevant to the instant case and also that cross-examination of witnesses is adjourned so it was not complete statement of witnesses, hence, the said application is liable to be and is hereby dismissed.

Wife/Khemlata Chouhan (PW-1) in her examination-in-chief has deposed that the marriage in between the parties was solemnized prior to seven years as per Hindu customs. Initially, the husband lived peacefully with her and after few days of marriage, his behaviour changed drastically and he started quarelling and beating frequently with her on account of demand of dowry. She has further deposed that in the year 2009, her elder father passed away, but her in-laws refused her to go there and one day prior to Dasgatra, husband dropped her in her maternal house. She further deposed that she was waiting for the call of her husband, but despite several efforts made by elders and relatives, he was not ready to come and take her. Thereafter, she filed a complaint of demand of dowry against her husband and in-laws before Police Station Darri. She filed an application for maintenance, which was allowed. She has deposed that she filed an application for return of her Stridhan. In cross-examination, she has admitted that her husband had not beaten her with belt, hands and fists. She further deposed that husband has never abused her.

Likewise, reading of evidence of other witnesses, namely, Gokul Prasad (PW-2) and Neeraj Kumar (PW-3) shows that they stood firm to the statement of Khemlata Chouhan (PW-1). They stated that after marriage, appellant and respondent lived peacefully and after few days of marriage, respondent and his family members were started quarelling and beating appellant on account of demand of dowry. Gokul Prasad (PW-2) also deposed that in their community, there is no dowry culture and he has given all the articles and ornaments on his own will. In cross-examination, they have stated that respondent and his family members neither demanded money nor demanded any article or ornament from him and even he stated that the respondent/husband made efforts for further study of his wife.

Ratan Lal (DW-1) has examined himself to prove his case in defence. He stated that he was married to the appellant prior to seven years. After the marriage, he joined the company of wife. On the date of marriage, appellant was 12th pass and after marriage at his instance, she did her B.A. as also L.L.B. (2nd year). He deposed that on 14.10.2009, he knew about the death of elder father of his wife, but he took her to her maternal house on Dasgatra. He further deposed that on 26.10.2009 he had gone to her matrimonial house to take back her wife, but his father-in-law refused to get back his daughter with him. He stated that after 18 days of the alleged incident, wife lodged a compliant of dowry against him and his family members. He also deposed that if any list of items was prepared, which were given at the time of marriage, he is ready to return the same. In cross-examination, he has deposed that he and his father attended the social meeting. He further deposed that he and his father never demanded anything in marriage.

Likewise, Budhram (DW-2) and Ajor Singh (DW-3) supported the evidence of Ratan Lal (DW-2). They have stated that they neither demanded money nor any article or ornament at the time of marriage.

The appellant/wife has sought divorce on the ground of cruelty and desertion. In this regard, the Supreme Court in case of Savitri Pandey v. Prem Chandra Pandey reported in (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 reported in AIR 1957 SC 176, this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena reported in 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 order to find out the cruelty apart from a physical cruelty, mental cruelty has been defined by the Supreme Court in case of Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511, which are reproduced herein below :

“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

Insofar as decree on the ground of desertion is concerned, for constituting such ground, element of animus deserendi should always remain present. In case of Smt. Rohini Kumari v. Narendra Singh reported in 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.

Hon’ble Supreme Court in case of Raj Talreja v. Kavita Talreja (Civil Appeal No. 10719 of 2013, decided on 24.04.2017) held that a false complaint was registered against the husband by the wife and in criminal proceedings, the husband had been acquitted. On this account, the husband was held entitled to decree of divorce on the ground of cruelty. Further, in case of Rani Narsmiha Sastry v. Rani Suneela Rani (Civil Appeal No. 8871 of 2019), it has been held by the Apex Court that :

“when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005,they lived together only for 18 months and thereafter they are separately living for more than a decade now.

In view of the foregoing discussion, we conclude that appellant has made a ground for grant of decree of dissolution of marriage on the ground as mentioned in Section 13(i)(i-a) of the Hindu Marriage Act, 1955.”

Copy of judgment of Judicial Magistrate First Class, Katghora dated 23.04.2018 shows that husband along with his father, mother, brother and sister was convicted under Section 498-A of Indian Penal Code, but in appeal before the Additional Sessions Judge, Katghora, all above persons were acquitted vide judgment dated 24.11.2018, therefore, false charge / prosecution has been initiated not only against the husband but also his old aged father and mother along with brother and sister, which amounts to cruelty upon husband.

In the evidence and material placed before us, we cannot say that there is any much less clinching material to show that the impugned judgment and decree calls for an interference. Further, it also does not show that the husband has committed any physical and mental cruelty upon his wife or deserted his wife.

The learned Family Court has discussed the entire evidence and has reached to the finding that the appellant/wife has failed to prove the cruelty. On appreciation of evidence, we do not find any perversity in the findings recorded by the Family Court. The impugned judgment and decree is just and proper warranting no interference of this Court.

As an upshot, the appeal, sans substratum, is liable to be and is hereby dismissed, leaving the parties to bear their own cost(s).

However, in respect of return of Stridhan, which has been awarded by the Family Court to that extent, we are of the considered opinion that Family Court was justified in returning the Stridhan to the appellant/wife.

A decree be drawn accordingly.