Mrs. Raj Bharti vs Ashok Kumar Begwani

Farooq Hasan, J.—This is a matrimonial dispute arising out of a petition filed by the respondent, Ashok Kumar Begwani, u/s 13 of the Hindu Marriage Act, 1955 for a decree of divorce against the appellant, Mrs. Raj Bharti on the ground of cruelty.

A broad brush factual backdrop will help delineate the points evolved in this matrimonial dispute.

On January 31, 1983. at Calcutta, the marriage of the parties took place according to the Hindu rites and customs, and thereafter, the appellant started living with the respondent-husband in his house. According to the husband''s application, the relations in between the parties were not affectionate and cordial from the very beginning and soon after the marriage, the appellant left away the house of the husband and started living in the house of her brother at Calcutta. It has further been stated in the husband''s application that the respondent (husband) came to live in his house at Jaipur along with his wife-appellant for about 15 days; that the wife returned back from Jaipur to Calcutta in March, 1983 without his consent and thereafter did not come back to live with him at Jaipur. Apart from cruelty, the divorce has been sought on the ground of desertion, for which certain circumstances have been averred in the husband''s application.

The appellant wife, in her reply, denying the allegations made by the husband-appellant, alleged that she stayed in the house of her husband at Calcutta inspite of torture, abuses, ill-treatment & threatening, on account of which she had left with no option but to go her parental house. The appellant has also cited some instances of cruelty by the husband including the fact that the demand of a huge sum by the husband was made from her brother to whom she stated to be a handicapped person suffering from polio. How ever, the wife has specifically denied the fact of coming to Jaipur and residing with the husband at Jaipur, which laid her to contend that the Family Court has no jurisdiction to entertain the husband''s application for divorce. In the reply, the wife has also stated that the application has been filed at Jaipur with ulterior motive for harassing and causing mental agony and financial loss to her.

The husband''s application for divorce was allowed by the Family Court earlier on July 18, 1986-against which, an appeal was filed before this Court and the same was allowed on September 23, 1987. While allowing the wife''s appeal (Civil Misc. Appeal No. 212/1986), earlier judgment & decree dated 18-7-1986 were set aside and the case was remanded for re-trial and the parties were allowed chance to produce their evidence. And, it was directed to the Family Court that after recording the evidence of the parties it would decide the matter afresh.

As stated earlier, the divorce has been sought on the grounds of desertion & cruelty. So before going into the merits of the case, we would like to express our views by way of more intrinsical examination on the point as to in what circumstances, desertion & cruelty can be assumed.

Legal cruelty may be defined as "conduct of such a character as to have caused danger to life, limb or health or as to give rise to a reasonable apprehension of such danger." Therefore an inquiry has to be conducted,, whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it would be harmful or injurious for him to live with the non-petitioner. In a case where the wife was arrogant temperamentally and showed total disrespect towards members of his family causing untold agony to the husband, then such sort of conduct of the wife is covered by the definition of'' cruelty''. In a case of judicial separation, if the evidence adduced showed that the defendant had adopted a persistent silence towards the applicant and he had persistently and deliberately ignored her existence, making life intolerable, the applicant namely the husband was entitled to a decree of judicial separation.

The clause of ''cruelty'' requires that to establish cruelty the offending spouse must have ''treated'' the applicant with cruelty and the court has to ascertain whether or not there was anything which can be described as treatment or conduct of the nature. ''Cruelty'' can be inferred from a display of temperament, emotion or perversion whereby the one gives vent to his or her feelings, without intending to injure the other.

What is cruel treatment must to a large extent, be a question of fact or a mixed question of law and fact to be determined within the ambit of the rule.

Similarly, the ''desertion'' is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another 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 One of the essential ingredients of desertion is separation of one spouse from another and there can, therefore, be no desertion while the parties are living together.

To fortify these observations, referred to above, reliance can safely be placed upon the decision of the Apex Court in Dr. N.G. Dastane Vs. Mrs. S. Dastane, . In the relied case (supra), their Lordships of the Apex Court observed that the threat by the wife to the husband that she will put an end to her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in news papers and the persistent abuses and insults hurled at the husband and his parents, are all of so grave an order as to imperil the husband''s sense of personal safety, mental happiness, job satisfaction and reputation. For the other like-wise reasons the Apex Court also held that assuming that there was some justification for occasional sallies or show of temper, the pattern of behaviour which the non-applicant generally adopted was grossly excessive. Thus the conduct of the non-applicant-wife clearly amounts to cruelty within Section 13(1)(b).

Now we pass on to discuss the facts and circumstances of the case brought on record, and decide the controversy raised at the bar, in the light of the principles pointed out here in above. How ever, at the vary outset here, we point out that Sub-section (2) of Section 23 of the Hindu Marriage Act, 1955 (for brevity ''the Act'') casts an obligation on the Court to consider and to make every endeavour to bring about reconciliation between the parties. Similarly, Section 9 of the Family Courts Act, 1984 casts duty on the Family Court to make endeavour in the first instance, to (sic) and presuade the parties in arriving at a settlement in respect of their dispute so that institution of marriage is protected and preserved, and the settlement of dispute is arrived at by conciliation efforts of the Court.

In the present case, the spouse were directed to appear in the Family Court on 12th October, 1987. But, the wife (appellant) did not appear on October 12, 1987 even after the directives of this Court in the appellant''s earlier appeal, referred to above, though the counsel for the appellant appeared before the Family Court, and on that day (October 12, 1987) the Family Court directed the counsel for the appellant that the appellant (wife) should appear in Court for conciliation. Even, on the next date, (Nov. 9, 1987) too, the appellant did not appear; and on that date, the Family Court again directed the appellant''s representative, Shri S.R. Joshi, to ask the appellant to appear on 8-12-1987 but, the wife did not appear in Court on 8-12-1987 and then on subsequent dates, 4-1-1988, 13-1-1988, 17-2-1988, 24-2-1988, 16-3-1988, 28-3-1988 & 16-4-1988, she remained absent throughout which laid the Family Court to proceed ex parte against the appellant and ultimately, on 3-5-1988 the statements of the witnesses produced by the husband were got recorded and thereafter, the judgment was pronounced on 5-5-1988.

In the written statement, the appellant has been keen to come and live with the husband but, in our view, the circumstances apparent on the record show that the wife (appellant) avoided to attend the Court and to participate in the conciliation proceedings, and she always avoided all the conciliation efforts. In these circumstances, the Family Court had left no other way out but to proceed ex parte against the wife (appellant). More over, the circumstances apparent from the record including the order-sheet drawn by the Family Court persuade us to conclude that the conduct of the appellant (wife) was adamant and that she was reluctant to concile the matrimonial dispute and she was determined to live separately because she never intended to live with her husband. In these circumstances, the desertion can safely be assumed because, the deserted spouse (wife) never affirmed the marriage and have not been ready & willing to resume married life and even it can easily be presumed that the spouses had ceased to be one house hold and had become two separate house holders.

In the application of the husband (respondent), it has been averred that he (husband) tried his best to keep the appellant (wife) in pleasant mood by making several efforts (which are corroborated by the evidence on record), such as, at one occasion, he took the wife to a renowned sight-seeing place of Jaipur, Amer, where, on the offer by the husband to eat a piece of sweet, ''Rasgula'', the wife declined and giving jerk to the hand of the husband ran away to the Maavtta'', a water tank situated at Amer, on the railing of which she raised her foot for jumping into the tank in order to commit suicide, but she was saved, and that at another occasion, as has come in the evidence of the appellant, the wife on Wednesday 22/23rd March said, "she wants to go to Calcutta because she received massage from her brother on telephone" on which the husband is alleged to have not permitted the wife and persuaded the wife to live with him-to which, the wife is, alleged to have become angry and annoyed and had threat end the husband saying that if she is not allowed to go to Calcutta, she will set her on fire by pouring kerosene oil. These facts have also been admitted by the respondent in his evidence which has been corroborated by Mohanlal. Thus, such an act of threat On the part of the wife amounts to cruelty against the husband. The husband in his application further averred that the wife had at her instance created strained relationship with the respondent and this appears to be correct and can be easily inferred from the circumstance that a criminal case was registered against the relatives and friends of the husband on a complaint (Ex. 2) filed at the instance of the wife, and on the basis of that complaint, charge-sheet (Ex.3) was filed against the relatives & friends of the husband in the Court at Calcutta where the relatives & friends of the husband were summoned by order (Ex. 4) though the assailants made in complaint (Ex. 2) have been discharged by the Court at Calcutta vide order (Ex. 5). Such state of things by wife are also covered by the definition of cruelty, and, suffice it to infer that the wife is adamant to live separately and the appellant-wife is reluctant to live with the husband (respondent).

The husband has also produced one letter (Ex. 1) in hand-writing of the wife to one ''Shashi'', which has been proved by the respondent husband before the Family Court in his statement where in he has deposed that letter (Ex. 1) is in hand-writing of the wife. We have gone through the contents of letter Suffice is to write that the contents of this letter (Ex. 1) are highly objectionable and cannot be expected from a sober married lady who is dedicated to her husband And, by the contents of this letter it can safely be assumed that the wife (appellant) is absolutely reluctant and even have no slightest desire to live with her husband. It has also come in evidence that at many occasions, the wife insulted her husband. In this context, numerous incidents have been cited by the husband as constituting cruelty. One of the incidents can here be briefed stating that at one time, the husband took the wife (appellant) in a Hotel Natraj but at that time, there, the wife is alleged to have been not in a happy mood, and during that, Subhash (PW 9) is alleged to have advised her (appellant) to live happily with the respondent (husband), to which, the appellant had furiously shouted, "I do not bother for him rather let him (husband) go to hell". These facts have come in the evidence of the husband and Subhash (PW 9) before the Family Court. Kamal Kumar Begwani (PW 5) and Prem Lata (PW 7) corroborated the evidence of the husband on all counts. The learned Family Court was, therefore justified in believing the statements of the witnesses who have been produced by the husband (respondent).

The appellant (wife) though in her written statement has denied all the allegations and mentioned circumstances to show that she was prepared to live with the husband and there was no fault on his part but the fault was on the part of the husband; but, these facts have not been proved by the appellant because she did not dare to come in the witness box and then to substantiate the averments made in her written statement.

The husband (respondent) has alleged that after marriage, the appellant (wife) stayed only for two days with him "though stayed at Calcutta for about 15 days; and that, the wife was persuaded to live with the husband at the time when the husband was living in Calcutta but at that time also, the wife refused to live with him. It was the case of the husband that after persuasions, the wife was brought to Jaipur but here also, the wife did not live willingly with him, and at one occasion, she threw a ''Samosha'' on the face of the husband.

Thus, having benefited by the enlightment derived from the evidence discussed and the decision referred to above, we are of the view that the cruel attitude full of adamancy, behaving with the husband in an insulted manner such as throwing ''Samosha'' on the face of the husband, further saying, "I (wife) do not bother for him (husband), let him (husband) go to hell" the threat by the wife to her husband that she will put an end to her own life by committing suicide by way of jumping into a water-tank situated at a sight-seeing place-Amer in Jaipur where the husband took the wife in order to please her, and the persistent abuses and insults hurled at the husband as has come in the evidence on record, are all of so grave as to imperil the husband''s sense of personal safety, mental happiness, job satisfaction and reputation. These facets and similar outbursts are not the ordinary wear and tear of married life but they became by their regularity a menace to the peace and well being of the house hold. The acts of the wife are acts which tend to destroy the legitimate ends and objects of matrimony. Assuming that there was some justification for occasional sallies or show of temper, the pattern of behaviour which the wife generally adopted was grossly excessive. All the facets narrated above are sufficient to presume that the wife deserted the husband and she has always shown untolerable rather cruel attitude towards the husband (respondent).

More over, the conduct of the wife in court proceedings is not fair. The wife''s assertion in her written statement as well as in the applications moved on her behalf that she did not appear before the Family Court because of her illness is discrepant and fallacious to the facts mentioned in an application where in it has been mentioned that she could appear before the Family Court only when the husband would have paid her travel expenses along with litigation expenses. These expenses were sought only on the ground that she had no income and money with her'' and all her expenses were to be meted out by her brother The request of the wife for demanding the money on the aforesaid counts is further fallacious and contradictory by the averment that the dowry for the value of the lacs was given by her brother Kushal Chand (PW 2) who is independent person has also given the statement against the wife and there is no reason to disbelieve the facts mentioned by him with regard to the cruel attitude of the wife

Thus, viewed, the conduct of the wife (appellant) clearly amounts to cruelty-which has caused a reasonable apprehension in the mind of the husband (applicant) that it will be harmful or injurious for him to live with the respondent. We, therefore, hold that the appellant (wife) was guilty of cruelty and she deserted her husband, as has rightly been held by the Family Court. We further observe that the Family Court has committed no error of law with regard to the jurisdiction and other issues. We find no reason to interfere with the findings arrived at by the Family Court, and affirm the decree of divorce, granted by the judgment dated 5-5-1988.

In the result, we dismiss this misc. appeal of the appellant (wife) in limine.