Raghunath Mandalekar vs Bhumika Mandalekar

Goutam Bhaduri, J.�These are the two appeal, one of it is against the judgment and decree dated 09.08.2000 passed in Civil Suit No. 8-A/1997 by the Court of Additional District Judge, Surajpur, whereby the petition filed by the appellant plaintiff Raghunath Mandalekar seeking dissolution of marriage by decree of diverse has been dismissed. The another appeal is against the order of permanent alimony passed in favour, of respondent wife. Both the appeals are by the husband. Since the question of law and facts involved in both these appeals are similar, they are being disposed of by this common order. The brief facts as pleaded by the plaintiff/husband in the application filed by him u/s. 13 of the Hindu Marriage Act were that on 05.12.1995 the marriage of the plaintiff was solemnized with Bhumika Mandalekar, the respondent. It was further stated that after the marriage, the plaintiff was subjected to mental torture by the wife but because of the social surroundings he sustained the same. It was further stated that out of the wedlock a child was borne on 05.12.1995. It was also pleaded that after the birth of the child, the defendant wife did not allow him for cohabitation and refused to have physical relations with the husband and as such the husband was meted out with mental cruelty. It was also stated that the defendant refused to continue with the marriage obligations. The further averments were also made to the effect that threats were extended by the wife many a time to inculpate the plaintiff and their family members in false case of dowry. Pursuant to such threat, the report was also made by the wife but the same was found to be false when the enquiry was made by the Police. It was pleaded that twice the defendant wife left the company of the husband without any reason and started living in different places at Ambikapur. It was further stated that the defendant wife refused to have physical relation on the ground that she has relations with some other male and as such do not want to continue with the plaintiff husband.

The husband further pleaded that he was physically assaulted by the wife many times and false allegations of illicit relation were also clamped on husband with all vehemence. The husband also stated that because of such behavior of the wife, the mother and father of the appellant/plaintiff were not allowed to stay in the house and as such they had to start living separately which also added mental cruelty to the husband. It was stated that the friends of the husband were also not allowed to visit in the house. The pleading was made to the effect that after the child was borne, the charge of impotency was clamped on the husband plaintiff as the wife started saying that she had conceived pregnancy and gave birth of a child after an injection. It was further stated that the defendant wife tried to administer poison in the food to husband and tried to finish the life of the husband and in order to finish the plaintiff, the wife took the help of his brother. The husband also stated that while he used to sleep, water was poured on him and the wife used to throw articles to wake him up. It was stated that the wife did not allow any physical relation and therefore the matrimonial relation had become totally strained and on several allegations of cruelty, the divorce was claimed.

Per contra, the wife contended that after the marriage when the wife did not conceive, the mother and lather of the husband had levelled allegations that she was barren and were pressurizing the husband to perform a second marriage. It was stated by the wife that after birth of a child, the behavior towards her was not cordial. It was further stated that after birth of the child, the wife again became pregnant but because of the torture the child had lost the life in the womb itself and as such dead child was borne on 04.11.1987. It was also alleged by the wife that for dowry, the husband wanted to marry again and a counter allegation was also made that the husband had tried to burn her alive by pouring kerosene oil on her. She had also stated that the matter was reported to the police but at the instance of the other people, the report was taken back. The wife further had stated that the plaintiff appellant was working in SECL and without any permission, he was occupying the quarter of SECL and since it caused some dispute as such the plaintiff husband and the defendant wife both of them started living at Ambikapur. Thereafter when the dispute came to a settlement with SECL, both of them again came to Vishrampur from Ambikapur to occupy the house.

It was also stated that she had never clamped allegations of illicit relation of husband, but the husband himself has stated that he had several love letters of other ladies. It was also stated that the friends of the husband used to come to the house in a drunken condition late in the night about 10 a.m., therefore, they were asked not to come. She further stated that she has not caused any assault to the husband but the husband himself had left the house. Therefore, on pleading of various facts the decree for divorce was resisted.

The learned court below after considering the evidence and the statement of the witnesses has refused to pass a decree of divorce and has granted a permanent alimony of Rs. 750/- per month, hence these appeals by the husband.

I have heard learned counsel for the parties at length and perused the evidence and statements on record.

Learned counsel for the appellant would submit that according to the statement of the husband, the wife used to level false allegations on husband repeatedly and used to quarrel and extended threats to commit suicide and abused the husband and so on. He would submit that in such circumstances the husband was constrained to make a report to the police which was proved by Ex. P-1 to Ex. P-5. He further contended that the contents of the report would reflect the cruelty meted to plaintiff by the wife. He further referred to the statement of the husband and would submit that the wife also misbehaved with the parents of the appellant husband after the marriage and every time extended threat to make report to the police. He further stated that the husband has deposed that after the first child was borne, he did not have any physical relation with the wife as it was refused by her on the ground that she do not have any relation with the appellant. He would further submit that the allegations were levelled on the husband that one of the sister of the wife had committed suicide because of the fact that the husband has committed rape on her and such grave allegation itself amounts to cruelty. Therefore, it was submitted that such level of allegations along-with continuous mental harassment would lead to cruelty and irretrievable breakdown of marriage. The counsel, therefore, contends that the marriage be dissolved by a decree of divorce.

Per contra, learned counsel for the respondent wife would submit that in fact the husband used to torture the wife. He would submit that since the wife was working lady, the in-laws and the husband wanted the salary of the wife and when it was refused by wife, she was thrown out of the house and ultimately the husband and the wife started living separately at Shivnandanpur. He would further submit that the husband had in fact committed torture with the wife on account of dowry and apart from that the in-laws and husband wanted the amount from the wife which she was getting as salary. The said demand having not accorded, the wife was subjected to cruelty by the husband. Therefore, it was submitted that it was a case of cruelty by the husband and on the contrary, no cruelty was meted out by the wife to the husband. The learned counsel supported the order of the learned court below and submits that the order is well merited which do not call for interference.

A perusal of the petition filed u/s. 13 of the Hindu Marriage Act would reveal that the husband has raised serious allegations against the wife. It is stated that from 01.05.1997 both the husband and the wife are living separately. It is also pleaded that on 13.04.1997 one of the cousin sister of the wife committed suicide because of the misbehaviour of the wife. In reply to such petition, the wife has denied all the allegations and on the contrary has levelled counter allegations on the husband. In para 22 of written statement, it has been stated that the cousin sister of the wife had committed suicide at Baikunthpur because of the misbehaviour and torture of the husband and his family members. It has further been stated that during the enquiry after such suicide the husband was arrested and the parents of the husband were to be arrested. However, at the instance of the wife when it was stated by the wife that such suicide of cousin sister was voluntary, the husband and the members exonerated. It is also stated that because of the dowry the husband wanted to perform second marriage and therefore wanted a decree of divorce.

Now coming to the statement of the husband, it has been stated by the husband that the wife never respected the family members of the husband and for trivial issues she extended threats to lodge a report to the police. It is stated that at one point of time, she went to lodge a report but some how or the other because of counseling of police it could be avoided. The husband has further stated that after birth of their child on 05.12.95, the wife refused any physical relation with the husband and used to misbehave with the husband. Narrating the incident, it is stated that on one day when he came back in the night, the doors of the house were not opened and as such, he had to stay out in the cold waiting at the doors of house till 2 O''clock in the night. The husband has further stated that after birth of a child, he did not have any physical relation with the wife and has levelled allegations over the wife that she had illicit relations with other male. It is further stated by the husband that when he used to sleep, the wife used to throw articles on him to wake him up. Narrating the incident, the husband has further stated that one of the domestic help was also brought by the wife from her in-laws place but she was made to leave the house by the wife for torture. Thereafter, the girl committed suicide. When the people from in-laws place came, at that time, the wife clamped allegations on husband that he committed rape on such girl and the girl was thrown out of the house by the husband and therefore, the said girl had committed suicide.

The husband had also exhibited certain documents vide Ex. P-1 to P-5. These are the reports made to the Police station at Vishrampur and Ambikapur alleging several incidents with respect to the wife over a period of time. The reports were made to the Police on 12.9.1992, 28.4.1993, 27.4.1993, 13.12.1996 and 05.05.1997 wherein all such reports, severe allegations were made against the wife on different dates about the torture which has extended to the husband by the wife. Such report purports that the wife used to level false allegations of dowry and extended threat to inculpate all family members of the husband. It also include the allegation that before the people she used to assault and whatever article she used to have at her hand, she used to throw it on the husband. After going through all such reports, it reveals that serious allegations including assassinating the character of husband was also levelled by the wife.

The other witness examined on behalf of the applicant is one Phula Devi (P.W. 2). She is said to be the neighbour. She has stated that many a time, the wife used to abuse the husband publicly and extended all threats to inculpate the family in case of dowry. It has also been stated that the wife used to say that the child born out of the marriage was as a result of injection and not from the relations of the husband. The said neighbour has also stated that at one time the wife poured kerosene oil on her and clamped charges on in laws for that. After that incident the husband started living separately with the wife from their parents. The other witness (P.W. 3) has also stated that at one time, the wife had also stabbed the husband with knife. The witnesses have further stated that after the girl who was brought to the place by the wife when committed suicide, it further aggravated the quarrel.

The wife on the contrary has levelled allegations against the husband on the ground that she was a working lady and the in-laws wanted the salary of the wife. When it was refused by the wife, it is alleged that the wife was thrown out of the house and because of that both started living separately. It is also stated by the wife that the in-laws used to advise her husband to perform a second marriage. Narrating one incident, the wife has further stated that before 1.5.1995 her cousin sister Anita had come to their place which was objected by the in-laws and because of their torture she subsequently committed suicide. The wife has further stated that because of the relations, the wife begotten another child but on 04.11.1997 a dead child was born.

The wife has further stated the allegations that her husband used to torture her for dowry and for which she made a report to Police and her husband was arrested. Subsequently on the counseling of the neighbours the report was taken back by her. She has stated that the entire dispute arose out of sharing of money and the goods. In the statement, the wife has further stated that her husband has an illicit relation with one lady named Asha Agrawal. The wife has further admitted that one girl named Anita who was brought to their house when committed suicide, her husband was taken into custody over the statement given by her. Apart from all these allegations, the wife had levelled allegation that she was subjected to torture for demand of dowry. However, she admitted the suggestion in her cross examination that no such report for torture over demand of dowry was made.

After consideration of the evidence by both the husband and wife, it reflects that both the husband and wife have not hesitated a little to clamp serious charges on each other. The report filed by the husband vide Ex. P-1 to Ex. P-5 run over a period of time wherein serious charges have been reported. If such allegations are perused, which have been made at different intervals of time, one thing comes to fore that such written reports certainly were not made with an object to prepare documentary evidence but on the contrary reflects the existence of the fact. The allegations levelled in such report have been further corroborated by the husband and the witnesses examined on their behalf.

Certainly no uniform standard can be laid down for guidance which may be a mental cruelty as the same cannot remain static. The parties herein have levelled serious allegations against each other about their fidelity. Both of the parties have stated that opposite party is in illicit relations. If the marriage is performed, it is the understanding and faith in between the husband and wife, they cannot be tutored and made to understand by force. The degree of allegations levelled against each other would reflect canvass the bitterness and once it is crept in the minds of husband and wife, it becomes very difficult to unite again.

It is to be noted that the appellant husband and the respondent wife are staying apart since 01.05.1997 and thus 17 years have passed. Thus, they are living separately for more than 17 years. This separation has created an un-bridged gap between the two. Considering the allegations and the counter allegations between the husband and wife and because of which they are staying apart from 01.05.1997 that is for the last 17 years, I am of the opinion that marriage has irretrievably broken down.

Now the question which comes for consideration is as to whether the allegations levelled against the respondent wife will constitute mental cruelty to the husband who has filed a case for divorce. Mental cruelty and its effect cannot be stated with arithmetical exactitude. The concept of mental cruelty varies from individual to individual, from society to society and also depends on the status of the persons. Now turning to the present case, a perusal of Ex. P-1 to P-5 reflects that the wife used to clamp allegations on the husband and also at one point of time poured kerosene oil on her and thereafter had levelled allegations of torture. The said reports which were made to the Police bear the acknowledgement on a different period of time. Naturally it can be very well assumed that at the relevant time, the concept of divorce may not be existing in the minds of the parties. Subsequently; the allegations levelled would go to show that the wife and husband have assassinated the characters of each other and have gone to the extent to say that husband and wife are in illicit relations. Therefore, it can be said that the conduct and behavior of one spouse was actually affecting the physical and mental level of the other. The relations between the two got totally strained and in the case, not only the isolated instances have been cited by the husband but also the complaints which have been made over a period of years certainly amount to cruelty. Admittedly the parties started living separately and it has been stated by the husband that it was extremely difficult to live with the wife any longer because of the behavior that also amounts to mental cruelty.

It is also note worthy to mention that in the written statement, the wife has levelled allegation that because of the torture meted out by the husband and his family members, the girl brought to the house had committed suicide. If such allegation levelled by the wife is considered, no evidence is on record to show that what was the reason of such suicide committed by the said girl. She has also alleged that because of the mercy extended by her to the husband, the police had not arrested the husband. Further the allegation of torture for demand of dowry was also levelled. There is no evidence on record that as to whether any case was registered against the husband for demand of dowry and torture. She in her statement has admitted that from 01.05.1997, they are living separately. Therefore, in the ultimate analysis of the evidence and statements of the parties, 1 am of the view that the respondent wife has caused by her conduct mental cruelty to the appellant.

It has been held by Hon''ble the Supreme Court in K. Srinivas Rao Vs. D.A. Deepa, that where marriage is beyond repair on account of bitterness created by the acts of either of the spouses or of both, courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. Marriage which is dead for all purposes cannot be revived by court''s verdict, if parties are not willing since marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by court decree.

In case of V. Bhagat Vs. Mrs. D. Bhagat, , the Apex Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty, the Apex Court observed that: (SCC p. 351, para. 21)

"21. ...Irretrievable breakdown of the marriage is not a ground by itself. But, while scrutinizing the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind."

In the matter of Naveen Kohli Vs. Neelu Kohli, , where the husband and wife had been living separately for more than 10 years and a large number of criminal proceedings had been initiated by the wife against the husband, the Supreme Court observed that: (SCC p. 582, Para 86)

"86. ...The marriage has been wrecked beyond the hope of salvage [and] public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto."

In view of the aforesaid discussion, I am of the opinion that the respondent wife has caused by her conduct mental cruelty to the appellant husband and the marriage has irretrievably broken down. The dissolution of marriage will relieve both sides of pain and anguish.

It is submitted that the respondent wife wants to go back to the appellant husband. During course of argument it was stated by the appellant that in any case, the appellant is not going to continue the relation with the wife. In such circumstances, even if the decree of divorce to the appellant husband is refused, there are hardly any chances of the respondent wife leading a happy life with the appellant husband because a lot of bitterness is created by the conduct of the respondent wife. Therefore, the appellant husband is entitled to decree of divorce.

Further, at the same time, another appeal has been filed by the husband against the order of alimony granted to the wife whereby the trial Court has granted maintenance of Rs. 750/- per month. During the course of argument, it is also submitted that the wife is working with the State Government. However, considering the plight of the respondent wife, I am of the opinion that the appellant husband should be directed to pay a sum of Rs. 3,50,000/- to the respondent wife by way of permanent alimony.

Accordingly, the marriage between the appellant and respondent is dissolved by a decree of divorce. The impugned judgment to that extent is quashed and set aside. It is further directed that the appellant husband shall pay to the respondent wife one time amount of permanent alimony of Rs. 3,50,000/- (Rupees Three Lakhs Fifty Thousand) within a period of 3 months from the date of this order. In the result, the appeal filed by the husband to dissolve the marriage by decree of divorce is allowed. In view of the foregoing observations, the appeal filed against the grant of permanent alimony is disposed off in view of observation of one time payment of alimony to the above extent. The decree be drawn accordingly.

No order as to cost.