Krishna Kumar Agrawal vs Richa Agrawal

The aforesaid appeals are being disposed of by this common judgment, as the appellant/husband has preferred a suit under Section 13 (1) (i-a) & (i-b) of the Hindu Marriage Act, 1955 (for short “Act of 1955”) against the respondent/wife seeking divorce, which was registered as Civil Suit No.108-A/2018 (CIS No.499/2011), whereas, the respondent/wife has also moved an application under Section 9 of the Act of 1955 for Restitution of Conjugal Rights against the husband which was registered as Civil Suit No.109-A/2018 (CIS No.1032/2012) and the parties in both the suit are same.

Civil Suit No.108-A/2018 preferred by the appellant/husband under Section 13 (1) (i-a) & (i-b) of the Act has been dismissed whereas, Civil Suit No.109-A/2018 preferred by the respondent/wife under Section 9 of the Act of 1955 for Restitution of Conjugal Rights has been allowed vide impugned judgment dated 28.11.2018 passed by the First Additional Principal Judge, Family Court, Durg.

Admittedly, the appellant/husband solemnized marriage with the respondent/wife on 01.07.2007 at Raipur and out of their wedlock one daughter was born on 31.01.2010. After marriage, both the parties came to Bhilai, from where, they proceeded to Hyderabad. Thereafter, in the month of July, 2007 both the parties had moved to America.

It is alleged by the husband that after moving to abroad, the wife started quarreling with the husband on petty issues and and used to check the suitcase of the husband. In the month of October, 2007, after quarreling with the husband, the wife returned to India. Thereafter, in month of May, 2008, a meeting was arranged between the family members of both the parties at Bhilai, where, the wife has admitted her mistake and assured not commit the mistake in future. Thereafter, on 22.06.2008, the appellant took back the wife to the America where they resided together till April, 2009. However, during the said period also, the wife used to quarrel with the husband and due to pressure created by the wife, the appellant came to India. After reaching India, the wife started raising quarrel with the mother of the husband. When the appellant complained about such quarrel to the mother of the wife, the wife along with her daughter proceeded to her parental house at Kotma.

Written statement has been filed by the respondent/wife denying all the averments made in the plaint. It is stated by the wife that at the time of marriage expenses of the marriage on behalf of both the families were borne by the father of the respondent/wife. It is further stated that when the husband took her to Hyderabad, the husband and his family members started harassing her for bringing less dowry and made demand for a car and a cash of Rs.10 Lacs. It is alleged that the appellant is having bad habits of consuming alcohol and he used to go to club and bar and he always used to check her personal belongings and to raise quarrel with her. Due to such cruel behaviour, the wife got fed up. It is alleged that the wife has never made any demand to return back to India neither she has stated about any mistake committed by her in the family meeting convened in May, 2008, instead, the husband has admitted his wrong in the said meeting. She also stated that both had lived together up-till May, 2009 in the house of the appellant at Bhilai. Thereafter, in the month of January, 2010 she has delivered a girl child. Even after such happening, the appellant and his family members have not taken any care of the wife. Due to such cruel behavior of the husband and his family members, she started residing in her parental house at Kotma since 25.05.2009. Thereafter, she has made a written complaint before the Superintendent of Police, Durg on 07.12.2011. On the basis of said complaint, offence under Section 498-A & 34 of the IPC has been registered against the husband, his mother and brother. It is stated that though the husband has committed cruelty with her but being a mother of the girl child, she is still willing to reside with him to save the family. She has stated that the husband on the false grounds filed the divorce petition.

The wife in the application under Section 9 of the Act of 1955 for Restitution of Conjugal Rights on 18.10.2012 stated that the appellant/husband without any cause left the wife, due to which, she started residing at maternal house. In the said application, she has made similar pleadings as has been made in the written statement of the aforesaid divorce suit filed by the husband. The husband has also filed the reply containing the same pleadings as made in the aforesaid suit for divorce.

After evaluating the pleadings and evidence adduced by both the parties, the learned Family Court has allowed the application under Section 9 of the Act of 1955 filed by the wife and the suit for divorce filed by the husband on the ground of cruelty and desertion was dismissed. Being aggrieved by the said judgment, the husband has filed these two appeals.

During the hearing of the instant appeals, Shri Varun Sharma learned counsel for the appellant submits that after passing of the judgment impugned, a criminal trial has also been concluded by the learned Judicial Magistrate First Class, Durg on 27.11.2021. Therefore, in the instant case, he has filed an application under Order 41 Rule 27 of the Civil Procedure Code (IA No.3/2022) for taking the additional documents on record which contains copy of the aforesaid judgment, however, the same was opposed by learned counsel for the respondent/wife.

Hearing upon the said application, this Court is of the view that the said document is necessary for proper adjudication of the case. Therefore, the application is allowed and the document is taken on record.

While arguing on behalf of the appellant, learned counsel submits that after the marriage, behaviour of the wife was not normal and she used to quarrel since beginning of the marriage. He submits that the wife has made false allegation regarding demand of dowry, cruelty and beating her. Due to such false allegations and due to cruel behaviour of wife, the appellant has moved a suit for divorce on 12.05.2011. He submits that though the wife has filed an application for Restitution of Conjugal Rights on 18.10.2012 but she has also filed a false criminal complaint against the husband, his mother and brother which has been registered under Section 498-A & 406 of the IPC and under Section 4 of the Dowry Prohibition Act. Even during the hearing of bail application of the husband, the wife protested against the applicant and opposed the prayer for bail. Eventually, the criminal prosecution resulted into the acquittal vide judgment dated 27.11.2021. In such backdrop, it is very difficult to reside with the wife when on the one hand, she made protest to send the husband and his family members to jail and on the other hand, she has filed an application for restitution of conjugal rights. Learned counsel submits that looking to the allegations made by the wife and upon scrutiny of the evidence, learned Magistrate at paragraph 29 of the impugned judgment has observed that the allegation made by the wife is not true. In support of his contention, learned counsel for the appellant placed reliance on the judgment in the matters of Narasimha Sastry Vs. Suneela Rani reported in (2020) 18 SCC 247 and Raj Talreja Vs. Kavita Talreja reported in (2017) 14 SCC 194. He submits that the learned Family Court has failed to appreciate the evidence in its proper perspective, therefore, the impugned judgment is liable to be set-aside and the present appeals deserves to be allowed and prays to grant decree of divorce in favour of the husband.

On the other hand, learned counsel for the respondent would submit that merely filing of a criminal case does not amount to cruelty. He would also submit that the said acquittal order is under challenge before the Court of Additional Sessions Judge and same is still pending. He further submit that the burden of proof is on the husband and he has not amended the petition to incorporate the grounds of acquittal of the appellant for the offence under Section 498-A & 406 of the IPC and Section 4 of the Dowry Prohibition Act vide judgment dated 27.11.2021. Learned counsel has drawn attention of this Court towards paragraph 28 & 29 of the impugned judgment where learned Family Court has recorded cogent reasons and observed that dispute between the husband and wife is nothing but normal wear and tear of life and same does not amount to cruelty. Therefore, impugned judgment passed by the learned Family Court is just and proper and the same does not call for any interference.

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

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record.

In Civil Suit No.108-A/2018, wife Richa Agrawal (NAW-2) has deposed that her marriage was solemnized with the husband on 01.07.2007 as per Hindu rites and rituals and her father Basant Kumar Agrawal (NAW-3) had borne expenses of the marriage from both sides. Though before marriage it was decided that both families would bear their expenses independently but during the marriage, under the Mandap, the maternal uncle (Mausa) and maternal aunt (Mausi) raised demand of money from her father, however, the same was refused by her mother. It is further deposed that after the marriage, both went to Hyderabad but after reaching the place, the appellant started harassing her and taunting her parents for bringing less dowry and also demanded a car and cash of Rs.10 Lacs. Her mother-in-law Smt. Usha Agrawal (AW-3) and brother-in-law Kishore Agrawal (AW-4) have also supported the husband over telephone with regard to demand of dowry. Even at Hyderabad, the husband has deprived her from necessary things like food and goods, due to which, she faced difficulties. Later on, the husband took the wife with him to America where he was posted. She has further deposed that after reaching America, the appellant started behaving in different manner and started quarreling with her. He used to say her ‘Jangli Suar’ and always talked with her in undignified languages and he was indulged in talking with other woman over mobile. When she tried to convince the husband, he threatened her and pushed her head against the wall. She has further deposed that when the husband used to go outside the house and she remained in the house, he used to lock the door from outside and return the house in a drunken condition and in such condition, he used to quarrel and beat her.

The wife has further deposed that during her stay at America, she was very much fed up with the cruel behaviour of the husband as the husband was having bad habits of going to club, pub and bar and always used to check her personal belongings. When she tried to object such behaviour of the husband, he became annoyed. Wife has stated that she never made any demand for return from America but the husband forcefully sent her back to India and he had made false allegation of being insane against her. Even for such cruel behaviour, the husband was supported and consented by her mother and brother and they blamed her that she and her family cheated them in the marriage.

The wife has also deposed that due to cruel behaviour meted out to her by the husband, her mother-in-law and brother-in-law, she along with her daughter had gone to her parental house at Kotma (M.P.) on 25.05.2009 where she lodged a written complaint before the Superintendent of Police, Durg on 07.12.2011. On the basis of such complaint, an FIR has been registered against the husband, his mother and brother at Mahila Thana, Durg. Thereafter, when she filed an application for return of Stridhan, the same was opposed by the husband and his family members and Stridhan was not returned.

Appellant/husband, Krishna Kumar Agrawal examined himself as AW-1 and deposed that the wife has lodged a false criminal case against him, his mother and brother in the month of December, 2012 which was registered as Criminal Case No.280/2023. In paragraph 13 of his deposition, he deposed that they have never made any demand of dowry and at the time of marriage expenses were borne by the family members of the husband. He has further deposed that wife was very well aware about the fact that the husband would be available in his house on 10th of May, 2013 therefore, she hatched a conspiracy and got the appellant and his family members arrested from his house. Due to such act of the wife, their family members were defamed in the locality. Thereafter, when he preferred a bail application in the Court, the wife objected the bail application and wanted to secure the arrest of the appellant and his family members.

It is undisputed that a criminal case initiated by the wife, later on, resulted into the acquittal and learned Judicial Magistrate First Class vide judgment dated 27.11.2011 passed in CIS No.123666/2013 appreciated the evidence upon close scrutiny and allegation in respect of demand of dowry, cruelty and return of Stridhan made by the wife were not found to be substantiated. Though, a criminal prosecution or a complaint moves before the statutory authority or any lodging of the complaint or FIR would always not amount to cruelty, but in a present case when the trial resulted into acquittal and husband and his family members have been absolved from all the charges levelled against them, it cannot be said that no cruelty is meted on them. In this regard, the proposition was material observed in Narsimha Sastry Vs. Suneel Rani (Supra) in paragraph 13 which reads thus:-

“13. In the present case, the prosecution is launched by the respondent against the appellant under Section 498-A IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. With regard to proceeding initiated by the respondent under Section 498-A IPC, the High Court made the following observation in paragraph 15 (2017 SCC OnLine Hyd 714):

“15.....Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty.”

The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But, 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 the pleadings before us, after the parties having been married on 14.08.2005, they lived together only 18 months and, thereafter, they are separately living for more than a decade now.”

Further, in the matter of Raj Talreja Vs. Kavita Talreja (Supra) it has been materially observed that cruelty can never be defined with exactitude and what is cruelty would depend upon the facts and circumstances of the each case. The relevant paragraphs from 9 to 11 of the said judgment read thus:-

“9. This Court in Para 16 of K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 has held as follows:

“16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh v. Jaya Ghosh, 2007 (4) SCC 511, we could add a few more. 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.”

In Ravi Kumar v. Julmidevi, (2010) 4 SCC 476, this Court while dealing with the definition of “cruelty” held as follows:

“19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometimes cruelty in a matrimonial relationship may take the form of violence, sometimes it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety—it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon, 1966 P 62 : (1966) 2 WLR 993 held that categories of cruelty in matrimonial cases are never closed.”

Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 (for short ‘the Act’). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self-inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of IPC.”

In view of the aforesaid principles and having regard to the facts and circumstances of this Court, this Court observes that after filing of the suit for divorce by the husband, though wife has filed an application for restitution of conjugal rights, but even without waiting for the result of the said application or suit, just after two months, she has lodged a criminal case against the husband, her mother-in-law and brother-in-law. Though filing of a such criminal case ipso facto cannot amount to cruelty but during the hearing of bail application, the wife has raised objection for grant of bail to the husband. Due to said proceedings, the husband, his mother and his brother faced the trial however, the same resulted into acquittal. Upon close scrutiny of the evidence coupled with the aforesaid fact, we are of the considered view that mental cruelty has been meted out on appellant/husband. Therefore, the appellant is entitled for decree of divorce.

With respect to permanent alimony, learned counsel for the appellant admits that the husband has completed the course of Engineering and presently, he is working with the private company and getting handsome salary. He is also paying an interim maintenance of Rs.6,000/- per month to the wife in a proceeding under Section 125 of the CrPC. Considering the financial status of the parties and present market rates and inflation and to further avoid multiplicity of proceedings, we deem it apposite that Rs.20,000/- be granted as monthly maintenance to the wife henceforth. Accordingly, the husband shall pay an amount of Rs.20,000/- as monthly maintenance to the respondent/wife. The deduction shall be made from source and shall be paid to the account of wife. The said maintenance amount is inclusive of all other maintenance granted to the respondent/wife and the same shall be set off and adjusted. It is made clear that as and when salary is reciprocally increased, the amount of maintenance shall also be increased proportionally to the extent of increase of percentage in future salary, which the wife would be entitled to receive.

The wife shall provide her account details before the employer of the husband and, in turn, the concerned employer shall deposit the maintenance amount directly in the account of the wife as stated above.

In the result, both the Appeals are allowed and the impugned judgment dated 28.11.2018 passed by the learned Family Court is set aside.

Parties shall bear their own cost(s).

A decree be drawn up accordingly.