Pusplata Shukla vs Rambahor Shukla

The instant Appeal is directed against the judgment and decree dated 19.7.2018 passed by the Family Court, Ambikapur, District Sarguja in Civil Suit No.10-A/2017 whereby the suit filed by the respondent/husband for grant of decree of divorce under Section 13 of the Hindu Marriage Act, 1955 on the ground of cruelty and desertion was allowed. The appellant/wife is in Appeal before this Court.

Admittedly, the marriage between the parties was solemnized on 21.02.1985 as per the social rituals and out of such relations, 3 daughters were born and at the time of filing of the suit on 17.1.2017, they were aged about 28, 23 & 18 years respectively. It was stated that after the marriage first posting of the husband was made at Odgi Health Centre and the wife started living with the respondent and at that time, parents of the respondent were also residing with him. Thereafter the wife started raising quarrel and made a demand that she was not willing to reside in the rural areas and wanted to live at Ambikapur city. Though the husband had tried to convince her but she remained stubborn to her demand and because of such dispute, she returned to her parental house at village Kudekala, District Raigarh. After some days, on being convinced, she returned and joined the matrimonial house. For some days, she lived happily, but the behaviour of the wife was not changed. Meanwhile, the husband was transferred to Baijnathpur, Tehsil Bhaiyyathan where also parents of the respondent were residing with him and the wife also raised quarrel in the said place and clearly stated that she is not willing to live with him. On 29th October, 1999, while returning from duty, the respondent/husband met with an accident while riding the scooter. On the said day, father-in-law reached his house. After staying for 2 days, on 1.11.1999, the appellant/wife returned along with her father to her parental house and thereafter she never returned to matrimonial house. Though the respondent/husband has made efforts several times to bring her back, but all efforts went in vain. The nature of appellant/wife is cruel and she has also lodged false report under Section 498-A of the IPC and also made a false complaint under the Protection of Women from Domestic Violance Act, 2005 before the Ambikapur Court. Based on such pleadings, the respondent/ husband has sought divorce.

Written statement has been filed by the appellant/wife denying the plaint averments. She has stated that parents of the respondent/ husband never resided along with her husband and parents of the respondent/husband were residing along with elder son Ram Darsh Shukla at village Shahpur, District Rewa (MP). She has further pleaded that she never said that she is not willing to reside in the rural areas and would plead that her father was a Teacher and he was always posted in the rural areas. She would further plead that after the marriage, the respondent/husband raised a demand of a Car and he used to harass her for bringing less dowry and on the petty issues used to beat her. When the respondent/husband met with an accident, after 15 days of such accident, when father of the wife visited to see him, he found that the respondent was well and he rudely behaved with her father and humiliated him. At that time, the respondent/husband himself ousted the wife and both daughters from the matrimonial house. She would further pleads that when the marriage of elder daughter was fixed and the same was intimated to the respondent/husband, he has not taken any responsibility and also not borne any expenditure of the marriage. She would further pleads that the other two daughters have also attained the age of marriage. She is suffering from arthritis and is unable to walk. The respondent/husband, on false ground;, has filed the divorce petition, which deserves to be dismissed.

On the basis of averments made by the parties, an issue was framed whether the respondent/husband is entitled for decree of divorce? After affording an opportunity of hearing to the parties and after evaluating the entire fact and evidence, the learned family Court has granted decree of divorce in favour of the respondent/husband on the ground that the appellant/wife has made false allegation about character assassination of her husband and also deprived the respondent/husband to participate in the marriage of his daughter, and such conduct amounts to cruelty, and the suit was allowed.

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

The respondent/husband has examined himself and two other witnesses namely, Balmukund Dubey (AW-2) and Jitendra Kumar Gupta (AW-3), whereas the appellant/wife has examined herself and her elder daughter namely, Priti (NAW-2).

Learned counsel for the appellant submits that no material is available on record which amounts to cruelty committed by the appellant/wife with the respondent/husband. The husband himself has ousted the wife along with daughters and in such compelling circumstances, she started residing in her parental house. Even when the daughters have attained the age of marriage, the husband was not serious to discharge the pious liability by participating in the marriage of daughters. When the wife with the help of her father settled the marriage of elder daughter and the same was intimated to the husband, he has not borne any expenditure and not even attended the said marriage. The wife and daughters have filed an application for maintenance. In the said case, a compromise has been arrived at and thereafter the respondent/husband has agreed to pay the maintenance of Rs.6,000/- per month. In such compelling circumstances, the wife has no other option but to lodge a criminal complaint against the respondent/husband. He further submits that in the year 2005, when the wife along with her daughters and father reached the house of respondent/husband, they found that one lady was present inside the house and the husband himself was not willing to keep the wife with him and filed false and baseless case for grant of divorce on 17.1.2017, taking benefit of his own wrong. Even though the husband was at fault, but the wife is always willing to keep the married life in-tact and she was not willing to break her married life. He further submits that in the petition, there was no pleading or ground that the wife has made any accusation about the character assassination of the husband. So, without any pleading about false character assassination, the family Court has taken the same as one of the grounds for granting divorce. He further submits that the married daughter namely, Priti (NAW-2) herself has informed about the settlement of her marriage to the respondent-father and the said fact remained unrebutted in the cross-examination. The respondent/husband has admitted the fact that he has not borne any expenditure for the marriage. It is an admitted fact that all the 3 daughters have now attained the age of marriage and the respondent/husband has not made any provision to discharge such liability. Therefore, conduct of the respondent/husband himself is at fault and no-one can be permitted to take benefits of his own wrong and appreciation of the evidence by the family Court is perverse and is liable to be interfered with. Learned counsel prays to allow the Appeal and set aside the impugned judgment and decree.

On the other hand, learned counsel for the respondent/husband would support the impugned judgment on submission that since 1999 without any rhyme or reason the appellant/wife has left the matrimonial house. Though the respondent/husband has tried to bring her back many times, but the appellant/wife herself refused to come and join the company and deserted her husband. He further submits that the appellant/wife has also lodged false FIR under Section 498-A of the IPC and also under the Protection of Women from Domestic Violance Act, 2005, and during the pendency of the petition, the respondent/husband has already been acquitted of the charge under Section 498-A of the IPC. Considering this aspect, the family Court has granted decree of divorce on the ground of cruelty and desertion, which has been duly proved by the respondent/ husband. Learned counsel prays to dismiss the Appeal.

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

The respondent/husband has filed the divorce petition in the year 2017 and he has not made any pleading to the effect that the appellant/wife has made any false allegation regarding his character assassination and he raised only one ground that on 29.10.1999, while he was returning from his duty on his scooter, he met with an accident. When his father-in-law came to know about such accident, his father-in-law reached the house at Bhaiyyathan and after staying for 2 days in his house, on 1.11.99, the father of the wife took his wife (i.e. his daughter) along with him to her parental house at village Kudekela, District Raigarh. Thereafter, the appellant/wife never returned to her matrimonial home. The respondent/husband has made vague pleading that several times he visited the house of the appellant/wife to bring her back, but there was no specific pleading as to on which date and along with whom he had visited or made any effort to bring back his wife and children. Admittedly, the respondent/husband at the time of filing of divorce petition was aged about 50 years, and at the same time, children of the parties had attained the marriageable age of 28, 23 & 18 years respectively. At this juncture of the married life, the respondent/husband only on the ground that the appellant/wife was not willing to return and join the matrimonial house, filed the divorce petition.

11.Admittedly, the appellant/wife and the children have moved an application for maintenance on the ground that the respondent/ husband is avoiding to pay the maintenance amount and is also avoiding to discharge the pious obligation. In the said matter, the respondent/husband has entered into compromise and amicable settlement has been arrived at and thereafter the respondent/ husband started paying maintenance of Rs.6,000/- per month. In such circumstances, it appears that the appellant/wife has filed the complaint before the Police and the Police has registered the offence under Section 498-A of the IPC. The appellant/wife has also filed a complaint under the Protection of Women from Domestic Violance Act, 2005.

12.The appellant/wife (NAW-1) and her daughter namely, Priti (NAW-2) have specifically stated that in the year 2005 when they visited to the quarter/house of the respondent/husband at Bhaiyyathan, they found that one lady outside the marriage was present inside the house and the said lady disclosed her identity as the wife of the respondent/husband. When the daughter and the appellant/wife objected to the misdeeds of the respondent/husband, the respondent/husband raised quarrel with them that he has not taken any responsibility of the appellant/wife and children. In such circumstances, the appellant/wife is living apart with the respondent/husband.

13.Priti (NAW-2), daughter of the respondent herein has further deposed in para-6 that after settlement of her marriage, she herself has intimated to the respondent herein (her father), but the respondent (father) has not taken any responsibility and even did not attend the marriage. The said fact remained unrebutted in her cross-examination. Even at para-12, a suggestion has been put forth to this witness that on 1.11.99, when her mother was ousted, she returned along with her mother to Ambikapur, the suggestion given to the respondent/husband itself shows that the respondent himself has ousted the appellant/wife from the matrimonial house. About the accident, the daughter has further explained that only minor injuries were sustained by her father.

14.The respondent/husband has examined two witnesses namely, Balmukund Dubey (AW-2) as landlord at Bhaiyyathan and Jitendra Kumar Gupta (AW-3). In cross-examination, (AW-2) Balmukund Dubey has categorically admitted the fact that the respondent/husband has not made any effort to bring his wife back. He further deposed that he is not aware that the respondent/ husband has incurred any expenditure in the marriage of his elder daughter, however, he further says that the respondent/husband was not invited in the said marriage. He further admits the fact that he is not aware that the daughter has made any application or filed  any petition against the respondent (father) before the Court to  meet the expenditure of the marriage. Jitendra Kumar Gupta (AW-3) is neither the relative of the respondent nor the appellant. In cross-examination, he is also not aware about the responsibility and obligation of the respondent/husband towards his marriageable daughters.

15.The family Court has allowed the decree of divorce on the ground of desertion.

16.In the matter of Savitri Pandey Vs. Prem Chandra Pandey {(2002) 2 SCC 73} at para 10 the following principle has been laid down:-

“10.To prove desertion in matrimonial matter it is not always necessary that one of the spouses should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.”

17.In Neelam Kumar Vs. Dayarani reported in (2010) 13 SCC 298, it has been observed that to prove the ground of cruelty, the treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

18.In Samar Ghosh Vs. Jaya Gosh {(2007) 4 SCC 511}, parameters (ix) & (x) mentioned at para-101 of the said judgment are germane for the present case, which are reproduced hereunder:-

“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) to (viii) xxx xxx xxx

(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.”

19.Reverting back to the facts of the present case, it is well settled in a catena of decisions that the sanctity of marriage cannot be left at the whims of the annoying spouse. In the instant case, the respondent/ husband has tried to take advantage of his own wrong and no party can be permitted to carve out the ground for destroying the family which is the basic unit or foundation of the family vests in the institution of legal and valid marriage. The approach of the Court should be to preserve the matrimonial home and reluctant to dissolve the marriage on the asking of one of the parties. In the circumstances, we are of the view that the respondent/husband has failed to discharge the onerous responsibility of substantiating the fact to demonstrate the erratic behaviour of the appellant/wife, which would constitute cruelty at the hands of the appellant/wife to the respondent/husband. It is accordingly held that the decree granted by the family Court on the ground of cruelty and desertion has not been found proved and the same deserves to be set aside.

20.With respect to permanent alimony, it is admitted position that the respondent/husband was posted at Health Department. Considering the present market rates and inflation and to further avoid multiplicity of proceedings and further considering the status of both the parties, we deem it apposite that Rs.15,000/- at source be granted as monthly maintenance to the wife henceforth. Accordingly, the husband shall pay an amount of Rs.15,000/- as monthly maintenance to the appellant wife. The deduction shall be made from source and shall be paid to the account of wife. It is made clear that as and when salary or pension/income 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. It is also made clear that if any maintenance has been awarded to the appellant/wife in any other case, the same shall be adjusted in the amount of maintenance granted by this Court.

21.For the foregoing, we are of the opinion that findings recorded by the learned Family Court are not sustainable and the same warrant interference by this Court.

22.In the result, the Appeal is allowed and the impugned judgment passed by the learned family Court is set aside.

23.Parties shall bear their own costs.

24.A decree be drawn up accordingly.