Pradeep Kumar vs Reeta Devi

Vivek Singh Thakur, J

mAppellant-husband has preferred this appeal against judgment dated 07.06.2022, passed by District Judge (Family Court) Shimla, District Shimla, H.P. Camp at Theog in HMA Petition No. 38/2020/18, CNR No. HPSH 100042682018, titled Pradeep Kumar vs. Reeta Devi, whereby petition preferred by the appellant, under Section 13 of Hindu Marriage Act, 1955 (in short 'Hindu Marriage Act') for dissolution of marriage, has been dismissed by decree of divorce.

The appeal has been preferred on the ground that impugned judgment is unjust and is result of misinterpretation, misconstruction, misreading of pleadings, evidence oral as well as documentary and law applicable, which has resulted in miscarriage of justice and the case cited on facts of present case, has not been considered in right perspective and further that Family Court has failed to consider that cruelty is to be construed from the facts and circumstances, created by the respondent, which caused mental and physical agony to the appellant-petitioner.

Appeal has also been preferred by stating that false allegation against father of the appellant-petitioner, that he tried outraging her modesty, itself amounts to cruelty and a person cannot think of living a life with a spouse, who, on his father, levied false allegations of outraging her modesty.

It has been contended that Family Court has failed to appreciate that respondent left the matrimonial house without any reason and, therefore, petition preferred by her under Section 125 of Cr.P.C., was also dismissed, qua her and maintenance was allowed only qua the son of the appellant-petitioner and even revision petition, preferred 5. It has been further contended that referring Hindu Marriage and Divorce, Himachal Pradesh Rules, 1982, Family Court has taken a hyper technical view, whereas necessary ingredients for filing petition under Section 13(1) (i-a) and (i-b) of Hindu Marriage Act, have been pleaded and established on record by the appellant-petitioner.

It has been further contended by learned counsel for the appellant that marriage between him and respondent has broken down irretrievably and in absence of dissolution of marriage, appellant-petitioner as well as respondent have to live a life, having no meaning, as the parties are living separately since 2013 and refusal to grant decree of divorce is unfair and unjust to the appellant-petitioner.

Learned counsel for the respondent has opposed the aforesaid plea of the counsel for the appellant-petitioner on the ground that finding returned in petition under Section 125 of Cr.P.C., are not conclusive with respect to cause of residing the spouse separately because proceedings under Section 125 of Cr.P.C. are summary in nature and the petition for dissolution of marriage by way of divorce has to stand on its own legs and the appellant-petitioner has failed to establish the ingredients necessary for passing a decree of dissolution of marriage and, therefore, Family Court has rightly dismissed the petition, preferred by the appellant-petitioner.

It has been further submitted that nothing has come on record about cruelty caused by the respondent to the appellant-petitioner, instead she has detailed the reason for residing separately, as the appellant-petitioner did not approach her to accompany him to matrimonial house, but for a divorce, as he intended to solemnize second marriage.

It has further stated in cross-examination that assertions of respondent made in reply as well as in the evidence by way of affidavit, have not been disputed by or on behalf of appellant-petitioner and, therefore, the same are deemed to have been admitted and, thus, challenge, laid to the impugned judgment passed by the Family Court, by the appellant, is liable to be dismissed.

We have gone through the record and have considered contentions of learned counsel for the parties.

First and foremost ground relied upon by appellant, for substantiating plea of cruelty on account of desertion, is order passed by the Trial Court as well as Revisional Court in the proceedings preferred by the respondent under Section 125 of Cr.P.C.

Proceedings under Section 125 of Cr.P.C. are summary in nature and object of such proceedings in Cr.P.C. (now in BNSS) to provide immediate relief to the aggrieved person, entitled for maintenance in terms of Section 125 of Cr.P.C. These proceedings are quasi criminal and quasi civil in nature. It is settled law that finding returned in criminal proceedings does not have any bearing on civil proceedings. The order passed in proceedings under Section 125 of Cr.P.C. can only be used for corroboration, but for corroboration, appellant-petitioner has to establish cruelty by way of desertion by respondent by pleading and leading independent evidence.

Perusal of order dated 22.08.2014, passed in Criminal Case No. 04-04 of 2013, under Section 125 of Cr.P.C. (Ext. PW1/B) and judgment dated 16.12.2016 (Ext. PW1/C), passed in Criminal Revision No. 3-S/10 of 2016/15, preferred by the wife against dismissal of her prayer, under Section 125 of Cr.P.C., indicate that in those proceedings, it was not proved that respondent (present appellant-petitioner) had willfully neglected or refused to maintain the respondent, being his wife, by observing that she had refused to come to matrimonial house.

It is apt to notice that it was specifically pleaded and claimed on behalf of appellant in proceedings under Section 125 of Cr.P.C. that a petition for restitution of conjugal rights had been preferred against the wife in the Court of Civil Judge, Senior Division, Court No. 2, Shimla and the said fact had weighed in favour of the appellant at the time of deciding the petition under Section 125 of Cr.P.C. as well as revision petition preferred against the said order. However, no case number or any other identification of the case was ever disclosed by the appellant-petitioner.

Surprisingly, in present proceedings, there is no disclosure or reference of such petition claimed to have been preferred for restitution of conjugal rights by the appellant-petitioner against the respondent. Neither case details of such petition nor any order passed therein, has been placed on record and even if such petition was preferred by the appellant-petitioner, the fate or status of the said petition has not been disclosed. Therefore, it appears that this plea of filing petition for restitution of conjugal rights, was taken in proceedings under Section 125 of Cr.P.C., only to avoid maintenance to the respondent and for not having been made any reference of such petition in present proceedings, a doubt is natural on the bonafide of the appellant-petitioner as well as correctness of the information placed on record by him.

In present case, it has also been admitted by the appellant that he is in arrears of Rs. 1,20,000/- towards maintenance, payable to the child. It is apt to record that initially maintenance was only Rs. 2,000/-per month, which has been enhanced to Rs. 3,000/- per month and @ Rs. 2,000/- it becomes Rs. 24,000/- per year and @ Rs. 3,000/- per month, it would be Rs. 36,000/- per annum. Meaning of arrears of Rs. 1,20,000/- is that, for about five years, appellant-petitioner has not been paying any maintenance to his child. The cruelty is on the part of appellant-petitioner, as he is not even paying maintenance to his son, which is nominal in nature and in cross-examination, he has stated that he will be paying through Court orders. Meaning thereby, respondent has to resort to filing execution petition for recovering the maintenance, payable to the child.

It is also a fact admitted by the appellant-petitioner that till the time of appearing in the witness box in present case, the appellant-petitioner had not met his son for last 6-7 years, who was of 11 years of age in 2019 and appellant was not knowing even about the class in which his son was studying. Though, he has alleged that his wife was not allowing the appellant-petitioner to meet his son, however, it is a matter of fact that appellant had never approached any Court for getting the custody of the child. Instead taking care of his child and ensuring timely payment of maintenance amount to the son, appellant-petitioner is dragging the respondent as well as their child in criminal proceedings, and for recovery of the aforesaid maintenance amount, respondent has to approach the Court.

It is claim of the appellant-petitioner that despite approaching, respondent refused to come back to matrimonial house, whereas respondent has deposed in the Court that at the time of death of her father-in-law, she had visited the matrimonial house. According to appellant-petitioner, respondent is not coming back, whereas according to respondent, she was waiting for call. In cross-examination, though she has stated that it is wrong that nobody came to her, but with further qualification that appellant-petitioner had approached her but with proposal of divorce, as he was intending to solemnize second marriage.

In present proceedings as well as in proceedings under Section 125 of Cr.P.C., it was claim of the respondent that appellant-petitioner had been working as salesman in Shimla. This fact was denied by the appellant-petitioner in proceedings under Section 125 of Cr.P.C., stating that he was not doing any job at Shimla, but was earning his livelihood as a labourer. However, he has also stated that he is not working as salesman, but as a helper in Shimla.

Appellant-petitioner has neither paid maintenance to his son nor has taken any step for his custody, and from the material on record, it appears that something is being hidden by the appellant-petitioner. It has been stated in the reply filed on behalf of the respondent that respondent is ready and willing to join the matrimonial home and it is the appellant- petitioner, who is not allowing the respondent to come to the matrimonial home, despite several requests.

At this stage, it is also noticeable that it is also case of appellant-petitioner that for levelling allegations against the father of the appellant-petitioner, it is not possible for the appellant-petitioner to live with respondent, as such allegations have caused mental pain and agony to the appellant-petitioner. The said stand of the appellant-petitioner is clearly depicting that he wants to get rid of the respondent,

The appellant-petitioner himself has stated that as respondent has levelled serious allegations against his father, it would not be possible for him to live with respondent. Meaning thereby, it is the appellant-petitioner, who is not interested to live with respondent and it probabilises the possibility, as being propagated on behalf of respondent, that there is something else, which has caused this litigation and, therefore, appeal is liable to be dismissed.

For material placed on record before us, learned counsel for the appellant-petitioner has failed to make out grounds for interference in the impugned judgment.

Appeal suffers lack of ingredients, present for dissolution of marriage. It is apt to record that for six years, respondent lived with the appellant-petitioner and his family members. She used to go to parental house, but also used to return. Therefore, her stand and decision not to come back, but except for assurance given by the husband to maintain her, cannot be amounted as willful neglect or desertion of the respondent from matrimonial house.

Learned counsel for the appellant-petitioner has referred judgment of the Apex Court in Civil Appeal No. 1339 of 2022, titled Debananda Tamuli vs. Smti Kakumoni Kataky, decided on 15.02.2022 by referring paras 10 and 11, wherein it has been discussed that merely because on account of death of Appellant's mother, the Respondent visited her matrimonial home and stayed for one day there, such stay does not amount resumption of cohabitation.

Referring judgment, passed by the High Court of Delhi in Mat. App. (F.C.) No. 247/2019, titled Ritesh Babbar vs. Kiran Babbar, decided on 10.03.2022, it has been contended that parties are living separately for last 12-13 years and there is no chance of reconciliation between the parties and the marriage has irretrievably broken down and no useful purpose would be served by maintaining this matrimonial bond, and that marital discord between the parties at present is such that there is a complete loss of faith, trust, understanding and love between the parties, which caused mental agony to the appellant and the parties cannot be reasonably expected to live with each other anymore.

Referring to judgment dated 19.11.2024, passed in Civil Appeal No. 1213 of 2006, tiled K. Srinivas vs. K. Sunita by two judges of the Supreme Court, it has been submitted that even one complaint is sufficient to constitute matrimonial cruelty.

There is no quarrel with respect to the judgment of the Apex Court in K. Srinivas's case (supra), however, complaint filed by the wife in every case cannot be treated as a cruelty. In case, she files a complaint, then it may be taken a circumstance against her to construe that she has caused cruelty to the matrimonial family and in case there is a delay, then there may be possibility of diminishing valuable right of the party. Therefore, requirement of slow or speedy adjudication, depends upon the facts of each relevant case.

In the given facts and circumstances, it is not only ground taken by the respondent to oppose the petition that respondent had visited the matrimonial house on account of death of her father-in-law, rather all material documents and conclusions are to be read in totality. The fact that parties are living separately since thirteen years, cannot be the only ground, on the basis of which, marriage can be dissolved.

Taking into consideration the material placed on record before us and submissions made by learned counsel for parties, we are of the considered opinion that there is no merit in the appeal and, accordingly, appeal is dismissed.

Pending applications, if any, also stand disposed of.