Nikhilesh Upadhyay vs Manisha Upadhyay

This is an appeal under Section 28 of the Hindu Marriage Act calling in question tenability of a judgment and decree dated 21.11.2005 passed by the Second Additional District Judge, Chhindwara in Civil Suit No. 165-A/2002 dismissing an application filed by the appellant-husband for dissolution of the marriage under Section 13 of the Hindu Marriage Act.

Marriage between the parties were solemnized on 16.4.2000 at Chhindwara and out of the wedlock a child was born on 28.3.2001. It is a case of the appellant that after the marriage the respondent forced him to live separately from his family at Bhopal and also refused to follow the customs and other religious system followed in the appellant''s family. It is said by the appellant that the respondent claim to be a modern woman belonging to a different strata of the society and alleging that the appellant and his family members follow primitive and old system of living which cannot be adhered to by the respondent, she use to create fight, dispute and misunderstanding in the family. Pointing out various instances about the activity of the respondent wife and terming them to be ''cruelty'', the application was filed for dissolution of marriage. Learned Court below framed various issues, witnesses were examined and based on the same a finding has been recorded to say that the instances indicated in the memorandum of application for dissolution of marriage do not constitute acts of ''cruelty'', no case for dissolution of marriage on the grounds of cruelty is made out, dismissed the application. Challenging the same, this appeal has been filed by the appellant-husband under Section 28.

Shri Sunil Pandey, learned counsel appearing for the appellant pointed out that when the proceedings were pending before the Trial Court, the respondent-wife on 7.6.2004 initiated proceedings under Section 498-A, 406 IPC read with Section 3 and 4 of the Dowry Prohibition Act against the appellant, his parents and other family members and for the same the appellant and his family members were arrested, they were released on bail and subsequently tried in Criminal case No. 269/2008 in the Court of Judicial Magistrate First Class, Panna and during the pendency of this appeal vide judgment dated 11.2.2010 they have been acquitted. The said proceedings are available from page 180 to 192 of the paper book. It is further stated that apart from the above, in the year 2006 the respondent-wife filed a complaint against the appellant and his family members for offenses under Section 294, 494, 506 read with Section 34 of IPC and in the said case, seven family members of the appellant including his parents, brothers, sisters and brother-in-laws were prosecuted and finally acquitted by the Trial Court vide judgment dated 14.5.2013 in Criminal Case No. 6968/2006. Based on the aforesaid false prosecution of the appellant and his family members, Shri Pandey submits that the act of his wife to initiate false criminal case which ultimately lead in acquittal, implicating of the entire family members is an act of cruelty and based on the same, dissolution of marriage is permissible. In support of the aforesaid contention, he invites our attention to following judgments to say that now on these grounds the marriage is liable to be annulled and dissolved. The judgments relied upon are:- Vishwanath Agrawal Vs. Sau. Sarla Vishwanath Agrawal, ; Malathi Ravi Vs. B.V. Ravi, ; K. Srinivas Rao Vs. D.A. Deepa, and various judgments of this Court namely, Smt. Kavita Vs. Harish Raisen, ; Smt. Manjusha Jadhav Vs. Pradeep Jadhav, ; Aradhana (Smt.) Vs. Pradeep Mishra, ; and S. Tamrakaar Vs. R.K. Tamrakaar - ILR [2013] MP 2939. Shri Pandey argues that now in the backdrop of the aforesaid legal principle when the respondent-wife has initiated false criminal case against the entire family of the appellant, got them arrested thereafter prosecuted and harassed them, which has ultimately led to their acquittal, the same amounts to ''mental cruelty'' and now taking note of these factors marriage between the parties should be dissolved.

Shri A.D. Mishra, learned counsel appearing for the respondent-wife refuted the aforesaid and tried to indicate that the learned Court below having found the acts of cruelty not established, no interference into the matter is called for. He submits that the respondent-wife is still willing to live with the appellant-husband. She has filed an application for injunction in the matter but the same was not granted. It is also stated that inspite of orders passed for restitution of conjugal rights at the instance of respondent-wife, the appellant is not living with the respondent-wife or permitting her to live with him. It is further argued by Shri A.D. Mishra that the criminal cases were initiated by the respondent because of the act committed against her. It was her legal right to initiate criminal proceedings and as in the criminal cases the appellant has been acquitted on various considerations, that cannot be a ground for dissolution of marriage and it is emphasized by Shri Mishra that the initiation of criminal case do not amount to cruelty. Accordingly, Shri A.D. Mishra prays for dismissal of the appeal.

We have heard learned counsel for the parties at length and considered the rival contentions. It is a fact that when the proceedings were initiated by the appellant before the Trial Court and when the appellant sought dissolution of marriage before the trial Court he has raised various grounds quoting incidents which according to him were acts of cruelty. However, while doing so in the evidence he had also indicated that he is being prosecuted along with his family members in various criminal cases but at that point of time criminal cases were pending. Be it as it may be, the learned Court analyzed the evidence that came before it, the facts as it exists at that point of time and found that the so call acts of cruelty as alleged by the appellant in the application are not proved on the evidence that came on record and that was the reason why the application was rejected. However, it is seen from the record that when the matter was pending before the Trial Court, proceeding and prosecution of the appellant and his family members for the offences under Sections 498A, 406 IPC, 3 and 4 of the Dowry Prohibition Act and for various other offences under Sections 294, 494, 506 and Section 34 of IPC were pending. In all these cases the appellant and his family members have been acquitted vide judgments dated 11.2.2010 and 14.5.2013. The judgments are available on record and on going through the judgments, we find that holding that the allegations pertaining to the offence alleged by the respondent wife are not proved, they have been acquitted and the criminal case is dismissed. The records of the criminal case also show that not only the appellant husband, but his father more than 70 years of age, his mother Smt. Krishna more than 68 years of age, his sisters, brothers and brother-in-laws have also been prosecuted in the criminal cases. In the trial held for offence under Section 294, 506 Part-1, 494, more than six family members of the appellant''s family apart from the appellant were prosecuted. Similarly in the case under Section 498-A, 406 and 3 and 4 of the Dowry Prohibition Act more than 7 family members were prosecuted. Under such circumstances, the only question now which has to be considered by us is as to whether on account of the aforesaid criminal prosecution of the appellant and his family members by the respondent-wife, an act of ''mental cruelty'' or ''cruelty'' as required under the provisions of Section 13(1) of Hindu Marriage Act is made out and whether the same is sufficient enough for allowing the appeal and dissolving the marriage. Before adverting to consider the aforesaid question, we may take note of the legal position as is existing in such cases. In the case of K. Shrinivas Rao (supra) this aspect of the matter have been considered and the Hon''ble Supreme Court after keeping in view the legal principles laid down earlier in the case of Naveen Kohli Vs. Neelu Kohli, has held that when the wife files criminal complaints and cases against the husband and the family members, the same could be viewed as a conduct causing mental cruelty and is sufficient enough to warrant annulment of the marriage. From para 22 onwards various judgments on the question has been considered and finally the principles of law laid down is that when a wife initiates criminal proceedings against the husband and their family members, they are arrested and ultimately these criminal cases results in acquittal, the act of wife and her conduct in initiating criminal proceedings amounts to ''cruelty'' and ''mental cruelty'' as contemplated under Section 13(1)(i-a) of the Hindu Marriage Act and is sufficient enough for annulment of marriage. This principle is again reiterated in the case of Vishwanath Agrawal (supra), wherein it has been held that the act of wife in initiating criminal complaints against the entire family member amounts to mental cruelty. In the case of Malathi Ravi (supra) the same principle has again been considered and the act of filing a criminal proceeding under Section 498-A read with Section 506 and Section 34 against the family members by the wife is treated to be a mental cruelty under Section 13(1)(i-a). In the case of Malathi Ravi (supra) somewhat similar situation was existing and we find that from para 29 onwards the matter has been discussed in detail. Reference has been made to various other cases, like the principles laid down in the case of K. Srinivas Rao (supra) and it is reiterated that the act of the wife in initiating criminal proceedings against the husband which ultimately do not result in any conviction is treated as a act of mental cruelty. Similar principles have been laid down by this Court also in the cases of S. Tamrakaar (supra), Smt. Aradhnaa (supra), Manjusha Jadhav (supra) and Smt. Kavita (supra). That being the legal position, we have to now examine the acts of the appellant in initiating the criminal proceedings and the ultimate result of the same and its effect on the present case. It is seen from the records that when the proceedings with regard to dissolution of marriage and was pending before the Court below, the respondent in the year 2004 i.e. on 7.6.2004 filed a complaint not only against the appellant but his parents and other family members for offences under Section 498-A read with Section 406 of IPC and Section 3 and 4 of the Dowry Prohibition Act and in a detailed judgment rendered by the Court of Judicial Magistrate First Class, Panna on 11.2.2010, the matter has been dealt with and after taking note of evidence that came on record, it has been held that she has failed to establish the allegations in the criminal case and has failed to prove that the respondents demanded a dowry of Rs. 5000/- and on non giving of the same harassed her. A detailed finding has been recorded by the learned Court below after due analysis of the evidence and material that came on record to say that false complaint is filed, allegations are not proved and complaint is dismissed. This Judgment is pronounced during the pendency of the matter before this Court. That apart, it is seen that the respondent wife lodged an FIR in Police Station Junnardeo, District Chhindwara being FIR No. 183/2006 on 2nd June, 2006 and in the same implicated the entire family members of the appellant and it was her case therein that the appellant and his family members have treated her in a manner which amounts to offence under Section 294, 494, 506 read with Section 34 of IPC. It was stated in this complaint by the respondent that she was married to the present appellant Nikhilesh Upadhyay on 16.4.2000. It is said that he has been harassing her along with his family members because of which she has instituted a complaint in the Court at Panna for offence under Section 498-A. She has further alleged in this complaint that she has been informed and she has reasons to believe that the appellant has contacted a marriage with one Smt. Sunita Giri on 5.4.2000 i.e. 10 days prior to their marriage and they are living together. It is said that thereafter one Ram Narayan along with his wife and a lady Smt. Manisha along with the appellant came to her house and she also went to the house of Nikhilesh where she found that he was living with a lady Sunita as husband and wife. She also alleged that when she went to the house of appellants who are accused, they assaulted her, abused her by using unparliamentary language and she therefore, filed a report which was registered in the FIR in the Police Station at Junnardeo. Learned Court below has found that all these allegations are false and the appellants have been acquitted. Shri Pandey points out that when the respondent wife makes a false complaint against the family members and the appellant that he has contacted marriage, with Smt. Sunita on 5.4.2000 i.e. 10 days before their marriage and when such a allegation is found to be not proved it is said that such an allegation amounts to mental cruelty, it tarnishes the reputation of the appellant in the society and referring to certain observations made in the case of Vishwanath Agrawal (supra) with regard to making false allegations which humiliates and embarrasses the family members in the society and is construed to be an act of mental cruelty. Shri Pandey argues that it is a fit case where now in the facts and circumstances, the marriage should be dissolved.

We have considered the material available in the criminal case, particularly the allegations made with regard to offence registered under Section 294, 506, 494 and we find that false allegation has been made against the appellant and his family members about contracting of the second marriage by the appellant, assaulting and abusing her, all these allegations having been found to be not proved, if the principles laid down by the Supreme Court and this Court in various cases as have been referred to are applied in the present case in the backdrop of these allegations, we have no hesitation in holding that act of the respondent-wife in making all these allegations against the appellant amounts to mental cruelty as defined in Section 13(1)(i-a) and on such consideration it is sufficient enough to pass a decree of dissolution of marriage.

Accordingly, holding that the act of the respondent amounts to mental cruelty, it is sufficient enough for dissolution of marriage, we allow this appeal. The marriage between the parties are dissolved and a decree for dissolution of marriage be passed.

Appeal stands allowed and disposed of.