Romesh Chander vs Smt. Savitri

N.K. Kapoor, J.—This Letters Patent Appeal is against the judgment of the learned Single Judge dismissing the appeal of the appellant filed against the judgment and decree of the Additional District Judge.

The appellant-husband sought a decree of divorce on the ground of mental cruelty caused to him by his wife. To support this plea, reliance has been placed upon the written statement filed by the respondent-wife in the earlier petition filed by the appellant seeking identical relief on the ground of desertion. Besides this, reference was made to certain complaints filed by one Ramesh Gupta and publication of a news item in a local paper edited by Sh. D.R. Gupta, who as per appellant, acted at the behest of the respondent with a view to harass and malign him in public eye.

The respondent wife appeared, filed written statement and denied the allegations of mental cruelty leveled against him. She also categorically denied having got complaint filed through Ramesh Gupta or being instrumental in publication of the news item in the local paper edited by Shri Gupta. In addition thereto, objection was taken with regard to the maintainability of the present petition under Order 2 Rule 2 of the Code of Civil Procedure.

On the pleadings of the parties, following issues were framed:-

1/ Whether the respondent had treated the petitioner with cruelty and the marriage between the parties is liable to be dissolved for the reasons given in paras No. 4(v)(a) to (f) of the petition: OPA.

2/ Whether the allegations made in para Nos. 4 (v)(b)(c), (d) and (e) had been considered in the previous litigation between the parties? If so, to what effect? OPD.

3/ Whether the petitioner had not condoned the alleged acts of cruelty on the part of the respondent? OPA.

4/ Whether the petition is hopelessly delayed and is liable to be rejected as alleged in the preliminary objection No. 1? OPR.

5/ Whether the present petition is barred under Order 2 Rule 2 CPC as alleged in the preliminary objection No. 2? OPR.

6/ Whether the petition is not maintainable as alleged in the preliminary objection No. 3? OPR.

7/ Whether the petition has been filed with a malafide intention in order to harass the respondent and is liable to be rejected as alleged in the preliminary objection No. 4? OPR.

8/ Relief.

Before proceeding with the trial, the trial court made an attempt of reconciliation. Whereas the wife was prepared to live with the husband; the husband stated that in no circumstances he was prepared to rehabilitate her. It is thereafter that the parties were asked to lead evidence in support of their respective pleas.

On the basis of evidence led, the trial Court decided issue No. 1 against the petitioner. Issue No. 2 was decided against the respondent-wife. Issue No. 3 was decided in favour of the husband. Under issue No. 4, it was held that the petition was hopelessly delayed. Issues No. 5 and 6 were taken up together and decided against the respondent-wife holding that the present petition is not barred under Order 2 Rule 2 of the CPC or that the same is not maintainable in view of the preliminary objections raised by the respondent. Similarly, issue No. 7 was decided against the respondent. Since the material issue i.e. as to whether the respondent-wife is guilty of causing mental cruelty in terms of Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short "the Act'') was decided against the petitioner-husband, the petition was dismissed vide judgment dated 22.2.1984.

The learned Single Judge before examining the appeal on its merit once again made an attempt for reconciliation which too failed for fault of the petitioner-husband. The matter was once again examined on facts as well as law, but the Court found no good ground to reverse the findings recorded by the trial Court and consequently dismissed the appeal.

Before us, the learned counsel for the appellant-husband has assailed the findings recorded by the Courts below terming these to be wholly illegal and erroneous. According to the counsel for the appellant, the learned Single Judge erred in law in not recording its finding under each issue separately which recourse, besides being impermissible, has otherwise also resulted in failure of justice. According to the counsel, the material evidence which has come in the form of written statement filed by the respondent-wife in the earlier petition, close link between Sh. Ramesh Gupta and Sh. Gauba with brother of the respondent-wife and on whose behalf both of them had been concocting false complaints and to bring him to disrepute by an insertion as a news item in a newspaper edited by Shri Gauba which goes a long way in showing their complicity in the matter, has neither been ignored or side-tracked. This evidence coupled with the other evidence adduced by the appellant, if examined in right perspective, would have clearly proved in guilt of the respondent-wife in terms of Section 13(1)(ia) if the Act. Since the learned Single Judge has failed to examine the matter in its true perspective, this Court is not debarred from reappraising the evidence and arriving at its own conclusion. Lastly, on the facts of the present case, the marriage has became irretrievable as both of them are living apart since 1969 and in such cases it would be more appropriate if a decree of divorce is granted. Elaborating, the counsel made reference to the written statement filed by the respondent-wife dated 4.11.1976 in the earlier petition filed by the present appellant seeking divorce on the ground of desertion wherein allegations were made against the character of the appellant-husband and to the false complaints regarding his character and integrity to his superiors in service and friends. The complaint of Mr. Ramesh Chander and the news item published in ''Hamari Maang'' on 15.12.1980 was high-lighted with a view to prove that the complaint was got filed by the respondent-wife and the news item too was published at her behest. Reference was made by the counsel to the statement of the witnesses that those persons acted such at the instance of the brother of the respondent. It was thus submitted that the respondent-wife is clearly guilty of causing mental cruelty to the appellant-husband in terms of Section 13(1)(ia) of the Act and is thus entitled to a decree of divorce. Reference was also made to the judgments in cases reported as Ram Murti v. Sohan Lal 1980 HLR 47; Madanlal Sharma v. Smt. Santosh Sharma 1980 HLR 441; Smt. Rajinder Kaur Gill v. Prof. Sital Singh, 1983 HLR 219; and Sqrn. Leader P.S. Kher v. Mrs. Kamal Nainjit Kaur 1981 HLR 569 in support of his contention that on proof of cruelty a person is entitled to a decree of divorce. As regard separation on account of irretrievability, support was sought from the decision of the apex Court in case reported as Ms Jorden Diengdeh Vs. S.S. Chopra, and V. Bhagat Vs. Mrs. D. Bhagat,

The various judgments cited by the learned counsel for the appellant-husband in support of the proposition that in case cruelty is proved, the appellant- husband is entitled to a decree of divorcee, is, in fact, beyond any dispute. Learned counsel for the respondent-wife too concedes this proposition. Thus it is to be seen whether on facts and circumstances of the present case, the conclusion arrived at by the Additional District Judge and affirmed by the Learned Single Judge calls for interference in this Letters Patent Appeal. A bare look of the proceedings clearly reveals that the ground of cruelty is based upon the respondent''s accusation against the character of the appellant as contained in written statement dated 4.11.1976 filed by the respondent in the earlier petition filed by the present appellant seeking divorce on the ground of desertion wherein it was averred that the appellant mixes with the undesirable girls and that the presence of the respondent-wife and her child will prove check and hindrance to his illegal enjoyment. In addition to this, complaints regarding corruption and character assassination of the appellant were made by the respondent-wife and persons closely associated with her at her behest.

The fact that these accusations were made in the written statement filed by the respondent in the earlier petition filed by the present appellant is not denied by the respondent and even otherwise is proved on record. The respondent-wife when cross-examined deposed that she had not got it recorded deliberately and it might have been got recorded involuntarily. She did not lead any evidence in support of these averments nor she has levelled these allegations in the written statement filed now nor has stated so in her statement. In the earlier case the learned Single Judge while accepting the appeal filed by the respondent-wife noticed this aspect of the matter and observed that "it is appropriate to mention here that throughout her statement, she did not refer to the allegation as disclosed in her written statement, that the respondent husband was having undesirable relations with other women." Thus at best she can be accused of unnecessary assertion in reply to the accusation of desertion. This plea can be examined from another angle also. Had these accusations (not proved) caused mental cruelty to the appellant-husband, he could incorporate the same by seeking a suitable amendment in the petition and so claimed a decree of divorce on the additional ground of cruelty. Admittedly, no such step was taken by the appellant at any stage of the proceedings either before the Additional District Judge or before this Court. One also cannot lose sight of the fact that cause of action if at all accrued sometime in the year 1976 when the written statement was filed, whereas the present petition seeking divorce on the ground of cruelty was filed in the year 1982. The judgments cited by the learned counsel are for the view that in case cruelty, as per Section 13(1)(ia) of the Act, is proved against the respondent-wife, a decree of divorce is to follow. In the present case, the Court below after appraising the evidence has come to a conclusion that the respondent-wife is not found guilty of charge of cruelty which finding is not found to be vitiated by this Court even after reappraising the material documents i.e., written statement filed by the respondent-wife in the earlier petition; compliant filed by Sh. Gupta and the news item published in a local paper named ''Hamari Maang''. This course was adopted so as to satisfy ourselves whether the conclusion arrived at by the trial Court and affirmed in appeal by the learned Single Judge is vitiated in any manner. Strictly speaking, we have somewhat transgressed the limit prescribed by the apex Court as per its decision in cases reported as Pattabhiramaswamy v. S. Hanyamayya AIR 1959 SC 57 ; Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, as reference was made to a later decision of the apex Court in case reported as Jagdish Singh Vs. Natthu Singh, wherein their Lordships have held that High Court is not precluded from recording a finding if Court below has not considered the relevant evidence or has adopted an essentially erroneous approach. We find no such infirmly in the impugned judgment.

The next point which needs somewhat close consideration is the plea that the marriage has broken down irretrievably. The case as set up by the appellant is that even since the year 1969 i.e. about a year after parties were blessed with a male child they have been living apart which should be construed as amounting to establishment of the fact that both the parties cannot live together. The apex Court in Ms. Jorden Diengdeh''s case (supra) observed as under:-

"...Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases.."

In V. Bhagat''s case (supra) after prima facie coming to the conclusion that the allegations leveled amounted to mental cruelty, awarded a decree of divorce holding that the same amounts to irretrievable breakdown of marriage. Irretrievable breakdown of marriage is, in fact, not a ground for dissolution of marriage u/s 13 of the Act. The apex Court in Ms. Jorden Diengdeh''s case (supra) come out with a suggestion that the law of marriage needs a complete reform and such law should be uniformally applicable to all people irrespective of religion or caste wherein irretrievable breakdown of marriage be introduced as one of the grounds of divorce. In the latter judgment, the Court after noticing the allegations made by the wife in her written statement and the question put by her counsel to the petitioner in cross-examination came to the conclusion that the same amounted to mental cruelty within the meaning of Section 13 of the Act. Elaborate reference was made to the averments made by the wife in her written statement wherein it was alleged that the petitioner is a mental patient; that he requires psychological treatment to restore his mental health; that he is suffering from paranoid disorder and mental hallucinations - and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. Even in her additional written statement, she asserted her right to state so. On these averments, the apex Court came to the conclusion that these are not the mere protestations of an injured wife; they are positive assertions of mental imbalance and streak of insanity in the mental build-up of the husband. It is on these facts that the Court held that "it is fit case for cutting across the procedural objections to give a quietus to the matter." However, as a word of caution, it was held as under:-

"Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter-allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorcee proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievably 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 made out and in determining the relief to be granted, the said circumstances can certainly be borne in mind. The unusual step as the one taken by us herein can be restored to only to clear up an insoluble mess, when the Court finds it in the interest of both the parties."

The facts in the present case are entirely different. The appellant sought a decree of divorce on the ground of desertion which plea was negatived by the learned Single Judge and affirmed in the Letters Patent Appeal and the SLP too was dismissed by the apex Court. Once again attempt has been made on the plea of cruelty. Both the Courts have found no merit in this plea of the appellant. This Court too found no merit in the case of the appellant-husband. Thus plea of irretrievability of marriage is not attracted as per facts of this case.

We also do not find much substance in the objection of the counsel for the appellant that the learned Single Judge has not given findings separately under each issue. The learned Judge has examined each of the objections raised on the basis of the material on record and thereafter came to the conclusion that the appeal is devoid of any merit. Even otherwise, issue No. 1 is the only material issue between the parties as decision of it determines its fate which issue like others have been dealt exhaustively.

The case can be examined from another angle also. On each occasion i.e. in the earlier proceedings as well as in the present case, as and when an attempt was made for reconciliation between the parties, the respondent-wife has expressed her willingness to join the appellant-husband without any reservation, whereas the appellant-husband expressed his unwillingness to unite. Fault, if any, lies at the door-step of the appellant-husband. He thus cannot be permitted to make this now a ground for dissolution of marriage taking shelter under the plea that the marriage has become irretrievable. Thus, we are of the view that the ratio of the judgment in V. Bhagat''s case (supra) is not attracted to the facts of the present case.

For the foregoing reasons, we do not find merit in any of the assertions raised by the appellant-husband and dismiss the appeal. The parties will, however, bear their own costs.