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Judgment
97 paragraphs · 4,558 wordsSujit Narayan Prasad, J
Prayer:
The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against order/judgment dated 20.09.2022 and decree signed on 30.09.2022 passed by the learned Principal Judge, Family Court, Gumla in Original Suit No. 23 of 2022, whereby and whereunder the learned Principal Judge has allowed the suit filed for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955.
Brief facts of the case:
The brief facts of the case, as per the pleading made in the original suit, needs to be referred herein reads, which reads as under:
The marriage between the parties was solemnized on 15.04.2019 in village Pantha, P.S. Basia, District- Gumla. It is contended that the marriage was solemnized after suppressing the facts with respect to the age of the appellant, which is about 40 years, which was stated to be 27 years and further the fact that she was in jail custody for two years has also been suppressed. It has also been stated that the appellant has committed the murder of her lover for which she along with her brother Mahavir Ohdar has been convicted for life vide judgment dated 14.8.2006 in S.T. Case No. 221/2004 and they are on bail granted in Cr. Appeal (DB) No. 573 of 2006 by the Division Bench of this Court. It has also been stated that when the Kundali of the parties was not being matched then the name of the petitioner, the respondent herein, was changed from Suresh Kumar to Ram Sah and when the petitioner denied for marriage then it was solemnized by putting pressure. It has further been stated that after the marriage the appellant always used to give threat for killing him as well as his family and when the same was objected by the petitioner-respondent, then she used to threat to send him to jail. There was no conjugal relation between the parties. There was a Maintenance Case being 19/2021, which was compromised on 07.10.2021, but the said compromise was made only remain on paper and the quarrel started thereafter also. Subsequently, the appellant has filed G.R. No. 307/2021 for the offence under Section 498A IPC, which is stated to be pending. Since the behaviour of the appellant/Opposite party was not good and even on the smaller issue, the cases are being instituted and the petitioner-husband is being harassed and all possibility of continuation of conjugal life is dim as such the suit for divorce has been filed.
The respondent-wife, the appellant herein, appeared and filed her written statement denying the statements made by the petitioner-husband. It has been specifically stated that the appellant-wife has disclosed all the facts with respect to the criminal case instituted against the appellant and it has also been disclosed that she had falsely been implicated in the said case. All these information was given prior to the marriage to the husband petitioner. It has also been stated that the maintenance case no. 19 of 2021 was compromised on different conditions, wherein the appellant used to reside peacefully but the petitioner started torturing her and thrown out from the house and only with a view to maintain her, the compromise was entered into. The appellant intended to save the marriage but the husband opposite party is adamant for divorce.
The parties adduced the evidence and the learned family court, after appreciating the material available before the court, allowed the suit filed by the appellant-husband by granting decree of divorce.
The appellant-wife being aggrieved with the order passed by the learned family court has approached this Court by filing the instant appeal.
Submission of learned counsel for the appellant-wife
Learned counsel for the appellant-wife has submitted that the learned family court has failed to take into consideration that no issue has been framed with respect to specific grounds mentioned in Section 13 of the Hindu Marriage Act, 1955 and no such finding has been given in the impugned order.
Submission has been made that the learned family court while passing the impugned judgment did not take into consideration the evidence led by the appellant-wife and the grounds which have been taken by the appellant-wife has also not been taken into consideration and only relying on the evidence adduced by the petitioner-husband has passed the order, which requires interference.
Analysis:
We have heard learned counsel for the appellant and gone through the pleading available on record as also the finding recorded by learned family court in the impugned order and other materials available on record.
This Court before proceeding further needs to refer herein the factual aspect of the matter.
The marriage between the parties was solemnized on 15.04.2019 in Gumla.
Ground has been taken by the petitioner-husband, the respondent-herein, before the learned family court that the marriage was solemnized after suppressing the fact with respect to the age of the appellant-wife, which was about 40 years, but shown to be 27 years. Further, it has also been suppressed that she was in jail custody for two years. It has been contended that the appellant-wife has committed the murder of her lover for which she along with her brother Mahavir Ohdar has been convicted for live vide judgment dated 14.8.2006 in S.T. Case No. 221/2004 and they are on bail as granted in Cr. Appeal (DB) No. 573 of 2006 by the Division Bench of this Court.
It is further alleged that when the Kundali of the parties was not matched, the name of the petitioner was changed from Suresh Kumar to Ram Sah and when the petitioner denied for marriage then it was solemnized by putting pressure. It has further been stated that after the marriage the appellant always used to give threat to kill him as well as his family and she used to leave the house and when the same was objected by the petitioner-respondent, then she used to threat to send him to jail.
The respondent-wife, the appellant herein, appeared and filed her written statement denying the statements made by the petitioner-husband. It has been specifically stated that the appellant-wife has disclosed all the facts with respect to the criminal case instituted against the appellant and it has also been disclosed that she was falsely implicated in the said case. All these information was given prior to the marriage to the husband petitioner.
This Court, in order to appreciate the submissions advanced by the appellant-wife and before going into the legality and propriety of the impugned order, deems it proper to go into the evidence adduced by the parties.
The petitioner-husband, the respondent herein, in support of his case has produced two witnesses, namely, P.W. 1-Suresh Kumar Sahu, the petitioner himself; P.W. 2-Shiba Sahu, father of the petitioner. Besides copy of the judgment dated passed in O.M. 19 of 2021 has also been produced.
On behalf of respondent-wife, the appellant herein, two witnesses have been produced. D.W. 1-Saraswati Devi, the Bhabhi [sister-in-law] of the respondent and D.W.2-Ranthi Kumari Devi, the respondent-wife herself.
P.W.1-Suresh Kumar Sahu in his examination-in-chief has reiterated the version which has been stated in the plaint.
In cross-examination, it is admitted by the petitioner- husband that before marriage he had seen the respondent, the appellant herein. Though, he remained consistent in his statement that the actual age of the respondent [appellant] was not known to him. He has further stated that some portion of his land was acquired by the Government for which compensation case was going on in which the respondent-wife has made objection.
Further, it is stated that he had no knowledge that the appellant-wife was convicted for life in a criminal case being S.T. No. 221 of 2004. On being questioned by the Court, the petitioner [respondent herein] has stated that it is his third marriage.
P.W. 2, Shiba Sahu, in his examination-in-chief, has support the case of the petitioner.
In cross-examination, he has stated that before marriage they have only seen the respondent-appellant and did not talk. At that time, it was told that her age is 23-24 but she was about 40 years old at that time. He has further stated that some portion of their land was acquired by the Government for which compensation case was going on in which the respondent [appellant] has made objection.
D.W. 1-Saraswati Devi, who is sister-in-law [bhabhi] of the appellant has stated in her examination-in-chief that the mother-father of the appellant has died long ago, as such, she is the guardian of the appellant.
She has stated that the petitioner and his family members with their liking and after seeing the appellant have agreed for marriage. They have told that the actual age of the appellant to be 33 to them and thereafter with the free will marriage was solemnized as per rites and custom. She further deposed that they have also told about the pending criminal case and only after that the marriage was solemnized.
It has further been deposed that the in-laws of the appellant used to torture her. Further it is the petitioner who concealed the fact that before this marriage, he had contracted two marriages also and now he intends to leave her to solemnize fourth marriage.
In cross-examination, nothing contrary statement has come. 27. D.W. 2, the appellant-wife has reiterated the statement that has been stated in the written statement.
The learned Principal Judge, considering the submissions advanced by the parties, allowed the suit granting decree of divorce in favour of the petitioner-husband, against which the instant appeal has been preferred by the appellant-wife.
It requires to refer herein that since appellate jurisdiction has been invoked herein, therefore, before entering into merit of the case, at this juncture it would be purposeful to discuss the appellate jurisdiction of the High Court.
It needs to refer herein that under section 7 of the Family Courts Act, the Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any Sub-ordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature which are described in the explanation to section 7(1).
Sub-section (1) to section 19 of the Family Courts Act provides that an appeal shall lie from every judgment or order not being an interlocutory order of a Family Court to the High Court “both on facts and on law”. Therefore, section 19 of the Family Courts Act is parallel to section 96 of the Code of Civil Procedure, the scope of which has been dealt with by the Hon'ble Apex Court in series of judgments.
The law is well settled that the High Court in a First Appeal can examine every question of law and fact which arises in the facts of the case and has powers to affirm, reverse or modify the judgment under question. In “Jagdish Singh v. Madhuri Devi” (2008) 10 SCC 497 the Hon'ble Supreme Court observed that it is lawful for the High Court acting as the First Appellate Court to enter into not only questions of law but questions of fact as well and the appellate Court therefore can reappraise, reappreciate and review the entire evidence and can come to its own conclusion. For ready reference the relevant paragraph of the said judgment is being quoted as under:
“Itis no doubt true that the High Court was exercising power as the first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a rehearing of the main matter and the appellate court can reappraise, reappreciate and review the entire evidence—oral as well as documentary—and can come to its own conclusion.”
This Court has perused the case record called for from the court concerned and found that in course of trial, the matter was sent for mediation which was ultimately failed and thereafter the matter was heard on merit. Before this Court, in spite of notice being issued upon the respondent-husband he did not appear. Therefore, the matter was heard on merit.
Herein, the appellant-wife has assailed the impugned judgment on the ground that the impugned judgment suffers from perversity.
Therefore, this Court, appreciating the argument advanced on behalf of the appellant on the issue of perversity, needs to refer herein the interpretation of the word “perverse” as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:
“24. The expression “perverse” has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression “perverse” means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that“perverse finding” means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined“perverse” as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
The expression “perverse” has been defined by various dictionaries in the following manner:
Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
“Perverse.—Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.”
Longman Dictionary of Contemporary English, International Edn.
Perverse.—Deliberately departing from what is normal and reasonable.
The New Oxford Dictionary of English, 1998 Edn. Perverse.—Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
The New Lexicon Webster's Dictionary of the English Language (Deluxe EncyclopedicEdn.)
Perverse.—Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
“Perverse.—A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.”
The suit was filed by the petitioner-respondent for decree of divorce under Section 13 of the Hindu Marriage Act. Therefore, before appreciating the argument advanced by learned counsel for the appellant and the pleadings available on record needs to refer herein the provision of Section 13 of the Hindu Marriage Act, which reads as under:
13.Divorce
(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.--In this clause,--
(a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]
(v) has 3* * * been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order;
or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 4***
6[Explanation.In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8[one year]
or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8[one year]
or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,--
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 9[bestiality; or]
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upward
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]”
This Court, before delving into the testimonies of witnesses to see as to whether there was sufficient reason before the learned family to grant the decree of divorce in favour of the petitioner-husband, needs to discuss the factum of cruelty, as petitioner-husband has taken the ground of cruelty in particular mental cruelty because of concealment of facts regarding the age; punishment of life of the appellant-wife in the criminal case and other things.
Herein cruelty has been taken by the appellant as one of the grounds for dissolution of marriage. It needs to refer herein that he “cruelty” has been interpreted by the Hon‟ble Apex Courtin the case of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326 wherein it has been laid down that the Court has to enquire, as to whether, the conduct charge as cruelty, is of such a character, as to cause in the mind of the petitioner, a reasonable apprehension that, it will be harmful or injurious for him to live with the respondent.
This Courtdeems it fit and proper to take into consideration the meaning of „cruelty‟ as has been held by the Hon‟ble Apex Court in Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105 wherein the wife alleged that the husband and his parents demanded dowry. The Hon‟ble Apex Court emphasized that “cruelty” can have no fixed definition.
According to the Hon’ble Apex Court, “cruelty” is the“conduct in relation to or in respect of matrimonial conduct in respect of matrimonial obligations”. It is the conduct which adversely affects the spouse. Such cruelty can be either “mental” or “physical”, intentional or unintentional. For example, unintentionally waking your spouse up in the middle of the night may be mental cruelty; intention is not an essential element of cruelty but it may be present. Physical cruelty is less ambiguous and more“aquestion of fact and degree.”
The Hon’ble Apex Court has further observed therein that while dealing with such complaints of cruelty it is important for the court to not search for a standard in life, since cruelty in one case may not be cruelty in another case. What must be considered include the kind of life the parties are used to, “their economic and social conditions”, and the “culture and human values to which they attach importance.”
In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the wife alleged in her written statement that her husband was suffering from “mental problems and paranoid disorder”. The wife’s lawyer also levelled allegations of “lunacy” and“insanity” against the husband and his family while he was conducting a cross-examination. The Hon’ble Apex Court held these allegations against the husband to constitute“cruelty”.
In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003) 6 SCC 334 the Hon’ble Apex Court has observed by taking into consideration the allegations levelled by the husband in his written statement that his wife was“unchaste” and had indecent familiarity with a person outside wedlock and that his wife was having an extramarital affair. These allegations, given the context of an educated Indian woman, were held to constitute “cruelty”itself.
The Hon’ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742, has been pleased to observe that while judging whether the conduct is cruel or not, what has to be seen is whether that conduct, which is sustained over a period of time, renders the life of the spouse so miserable as to make it unreasonable to make one live with the other. The conduct may take the form of abusive or humiliating treatment, causing mental pain and anguish, torturing the spouse, etc. The conduct complained of must be “grave” and “weighty” and trivial irritations and normal wear and tear of marriage would not constitute mental cruelty as a ground for divorce.
It is, thus, evident that the Hon'ble Apex Court in the recent judgment passed in Joydeep Majumdar v. Bharti Jaiswal Majumdar (supra) has been pleased to lay down that the conduct complained of must be “serious” and “substantial”and trivial annoyances and normal wear and tear of marriage would not establish mental cruelty as a ground for divorce.
It is evident that from the testimonies adduced on behalf of respondent-husband before the learned family court that the appellant-wife had concealed many factual aspect before contracting marriage. It further appears that it is in admission on the part of appellant-wife that she remained in jail custody for two years on being convicted for life for commission of murder of a person alleged to be her lover as such she along with her brother Mahavir Ohdar has been convicted for live vide judgment dated 14.8.2006 in S.T. Case No. 221/2004. It has further been stated that after the marriage the appellant always used to give threat to kill him as well as his family and she used to leave the house and when the same was objected by the petitioner-respondent, then she sued to threat to send him to jail. Furthermore, many criminal cases have been lodged by the appellant-wife against her also.
The learned Family Court, after due appreciation of the testimonies as also pleadings available on record, has come to the conclusion that cruelty was caused by the appellant- wife upon the respondent-husband.
Admittedly, the relationship of husband and wife is on the thread of trust and in the case at hand, the conduct of the appellant-wife by concealing the material fact about her age and her conviction of life in a murder case, before contracting marriage, has caused mental agony to the respondent-husband to such an extent that it is almost impossible for them to live together where the thread of trust has already been broken. Relationship of wife and husband is based on the trust and respect to have upon each other and if it is broken it is non-repairable as the trust is the foundation of marriage. Marriage is a relationship built on mutual trust, companionship and shared experiences.
On the basis of discussions made hereinabove, it is evident that learned family court has taken into consideration all aspects of the matter particularly the concealment of the fact by the appellant-wife about age and her conviction in the criminal case and accordingly decree of dissolution of marriage has been granted, as such the impugned order is not coming under the fold of perversity, and requires no interference.
Therefore, this Court is of the view that the impugned order/judgment dated 20.09.2022 and decree signed on 30.09.2022 passed by the learned Principal Judge, Family Court, Gumla in Original Suit No. 23 of 2022 requires no interference.
In the result, the instant appeal fails and is dismissed.
Pending interlocutory application(s), if any, also stands disposed of.