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Judgment
161 paragraphs · 9,903 wordsSujit Narayan Prasad, J
Prayer:
The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the judgment dated 08.10.2021 and decree dated 20.10.2021 passed by the learned Principal Judge, Family Court, Hazaribag in Original Suit No. 70 of 2014, whereby and whereunder, the suit filed by the plaintiff (appellant herein) seeking a decree of divorce against his wife (respondent herein), has been dismissed.
Factual Aspect:
The brief facts of the case, leading to filing of the divorce petition by the appellant-petitioner, as taken note in the impugned order as emanated from the plaint, needs to be referred herein, which reads as under:
The marriage between the appellant and respondent was solemnized on 12.02.2013 at Katras according to Hindu Rites and Customs. After the marriage, both the petitioner and the respondent came to Hazaribag and live together as husband and wife. The marriage was registered on 18.02.2013 at District Sub-Registrar, Hazaribag. The couple has no children.
It is further stated that was an arrange marriage. The father of the respondent approached the parents of the petitioner through the maternal Uncle Swarup Trigunait @Tulla and gave the Photographs, Bio-data and Kundli of the respondent for marriage with the petitioner. They also impressed upon the petitioner parents that the respondent is qualified upto MBA from FMS Banaras Hindu University and was employed as Manager in Citi Bank at Mumbai.
It is further stated that on 22.06.2012 parents of both the parties met at Dhanbad where the respondent was interviewed by the petitioner and his parents in presence of her parents and they all repeated that she did MBA from BHU and she is serving as Manager in Citi Bank at Mumbai. Further the respondent and her parents submitted that after the marriage she will get herself transferred to CITI Bank, Singapore where the petitioner is working. In August, 2012 on the day of Raksha Bandhan, the father of the respondent Nawal Kishore Trigunait came to Hazaribag alongwith Sri Arup Trigunait @ Dablu and Swarup Trigunait @ Tulla for final settlement of marriage of respondent with the petitioner which after discussion settled for 12.02.2013 and the engagement of which was performed on 06.02.2013 and Tilak Ceremony on 07.02.2013 and accordingly the marriage was performed on 12.02.2013 at Rajasthani Dharamshala, Katras, District Dhanbad.
It is further stated that at the time of registration of marriage at District Sub-Registrar, Hazaribag the respondent said that her Passport is lost somewhere. The petitioner was scheduled to go to his work in Singapore on 24.02.2013 and accordingly on 22.02.2013 the petitioner left for Mumbai and from there on 24.02.2013 he left for Singapore. It was arranged that the petitioner would send money in the account of the respondent held with Bank of India and she will hand over some money to her father-in- law to avoid unnecessary double transaction and cost, however, she never transferred any money to her father-in- law.
It is alleged that on 07.03.2013 the respondent informed the petitioner through email that she has obtained the Passport and she would get the Employment Pass on Tuesday ie. 19.03.2013. But suddenly the respondent informed that she cannot go to Singapore before 13th May, 2013 as per the orders of her superior authority. On 11th May, 2013 she said that her authorities will not relieve her before 16th August, 2013. On 04.07.2013 the respondent asked some money from the petitioner and gave her account number of Gaya Bank by email but she did not give her account number of CITI Bank where she was working. On 14.08.2013 she said that she had a very prospective project in her hand which she does not want to lose since it will build her career and she would be awarded Rs. 30,00,000/- (Rupees thirty lacs) only. She further informed that the project would be completed by 25th October. On 24.10.2013 the respondent informed the petitioner that she had purchased flight ticket for 10.11.2013 for herself and her husband for Singapore where she had to report for joining on 12.11.2013. On 25.10.2013 the respondent informed the petitioner that she has been asked to execute a Bond for three years and only then the tickets would be handed over to her. By this time, the petitioner got suspicion on her changing version from time to time
On 26.10.2013 the petitioner/appellant returned to Mumbai and in the Airport his brother Raunak Pathak from Pune and the respondent were present. Petitioner expressed his desire to meet the immediate Boss of the respondent to know why he was putting such blockage in the way of her going to Singapore. At 4.00 P.M. she took him to the Bank premises where she had been working but there was no Bank in function. In enquiry from the Security man, it revealed that there is no Bank there, but the respondent insisted that she had been attending her job every day in the Bank at the same place. She could not get to meet any of the Bank staff. They together reached Hazaribag on 27.10.2013. Father and brother of the respondent also reached Hazaribag on 30.10.2013. Respondent could not show her employment ID. On asking for email ID, she said that she did not remember her ID. About her salary she stated that presently she is getting Rs. 1.25 lacs per month which was previously Rs. 80,000/-. When questioned, she said that she is not willing to go to Singapore and will remain in Bombay where she has to build her career. When the petitioner asked her to show her education certificate and the appointment posting papers, she in the presence of her father and brother went inside the room and bolted from inside and consumed Vermillion (Sindur) in her mouth. The matter was reported to Female Police Station and she was admitted in the hospital after release from hospital, her father and brother took her to Gaya.
It has further been stated that the father of the petitioner then called Panchayati two times in the village Malkera. Neither the respondent nor her parents were able to produce any documentary evidence of her educational qualification or appointment letter before the Panchayat.
It has further been alleged that the respondent and her parents knowingly and deliberately misrepresented the fact about her qualification and appointment and impressed falsely to get married with the petitioner by playing fraud and thereby cheated the petitioner else he would not have married the respondent. She has also been fraudulently befooling the petitioner about her going to Singapore and now finally refused to go with the petitioner. 11. The petitioner/appellant on the ground that the respondent has treated the petitioner with cruelty and deserted him from her company and also due to fraudulent conduct of the respondent it was not possible for the petitioner to live with the respondent and therefore has filed Matrimonial Title Suit before the Court of the Principal Judge, Family Court, Hazaribag which was registered as Matrimonial Title Suit No. 70 of 2014 with a prayer to annul or dissolve their marriage by a decree of divorce.
Respondent appeared and contested the suit by filing a written statement and stated that due to desertion and cruelty by husband and in-laws, she has been living in her parental home and all the allegations as levelled against the respondent are false, frivolous and baseless allegations. It is further submitted that she had filed one Complaint Case No. 1250/2014 u/s 498-A, 379, 323 & 504 of the I.P.C. and 3/4 of D.P. Act before the learned Court of Chief Judicial Magistrate, Gaya (Bihar) and one Maintenance Case vide M. No. 80/2014 has also been filed by her.
The issues were framed by the Family Court which are as follows:
(I) Whether the suit as framed is maintainable in its present form?
(II) Whether the parties are legally married husband and wife?
(III) Whether the petitioner was treated with cruelty after marriage by the respondent?
(IV) Whether the respondent deserted the petitioner and left the matrimonial home voluntarily without any sufficient cause with an intention to abandon the relationship forever?
(V) Whether the petitioner is entitled for the relief of divorce as prayed for on the grounds of cruelty and desertion as contained u/s 13(1-a) and (1-b) of the Hindu Marriage act, 1955?
(VI) Whether the respondent gave false information regarding her bio-data before her marriage?
(VII) Whether the opposite party after the marriage furnished false information to the petitioner for her transfer from Singapore to Mumbai?
(VIII) Whether the petitioner is entitled for any other relief/reliefs?
(IX) Whether the petitioner-husband is entitled for relief of annulment of marriage u/s 12(i) (c) of Hindu Marriage Act, 1955?
Accordingly, evidences were adduced on behalf of the parties.
The learned Principal Judge, Family Court, after appreciating the evidence adduced on behalf of parties, came to the conclusion that the petitioner-appellant has not been able to prove his case against the respondent even to the extent of preponderance of probabilities. Accordingly, find and hold that he is not entitled to get the decree of dissolution of the marriage. Accordingly, the suit for decree of divorce was dismissed, against which the instant appeal has been filed.
Submission on behalf of appellant-husband
It has been contended on behalf of the appellant that the factual aspect which was available before the learned family court supported by the evidences adduced on behalf of the appellant has not properly been considered and as such, the judgment impugned is perverse, hence, not sustainable in the eyes of law.
Learned counsel for the appellant has submitted that there is sufficient evidence available on the record to show that the respondent and her family members have deceived the appellant not only once but twice and thrice, first when the father of the respondent approached the parents of the petitioner through the maternal uncle Swarup Trigunait and gave the photographs, Bio-Data and Kundli of the respondent for marriage with the petitioner and they also impressed upon the petitioner's parents that the respondent is qualified up to MBA from Banaras Hindu University and employed as Manager in CITI Bank at Mumbai and again on 22.06.2012 when the parents of both the parties met at Dhanbad and the respondent was interviewed by the petitioner and his parents and in presence of her parents they all repeated that she did MBA from BHU and serving as Manager in CITI Bank at Mumbai and that after marriage she would get her transfer to CITI Bank, Singapore where the petitioner is working and thirdly in August, 2012 when the father of the respondent came to Hazaribag along with his other relatives for final settlement of marriage of the respondent with the petitioner which after discussion settled for 12.02.2013 as the date of marriage and these all evidences although available on record to establish that the appellant was deceived at the hands of the respondent but not taken into consideration by the learned Family Court.
It has further been contended that the petitioner and his family have been subjected to mental pain and suffering from the last eight years due to which it is not possible for the appellant to live with the respondent and in these circumstances, it was expedient and justified to have granted a decree of divorce.
It is submitted that it is apparent from the evidence of both parties that the appellant and respondent are residing separately since the year 2013 and thereby deserting the appellant for more than eight years which is a valid ground for dissolution of their marriage.
It has been contended that the learned Principal Judge only on the evidence of P.W.3 who have deposed that before marriage his family members did not put any condition precedent of educational qualification decided the entire suit against the appellant/petitioner, because had this been the case the respondent and her family members would have stated that the respondent has passed only Intermediate and is doing nothing, the marriage between the appellant and the respondent would not have taken place and the present marriage has taken place only on the oral version as well on the basis of bio-data of the respondent which the respondent's parent provided and this entirely proves that the appellant has been frauded at the hands of the respondent and her family by giving false / misinformation regarding the educational qualification and employment of the respondent and thus the judgment and decree as passed against the appellant is fit to be set aside.
The learned Family Court has not appreciated the proceedings of the Panchayati taken place in village Malkera on 22.12.2013 and 05.01.2014 where relatives of both parties were present alongwith respected persons of the village and there also on demand of educational qualification and employment proof of the respondent, nothing was produced before the Panchayat.
It has been contended that respondents have repeatedly made false statement to the appellant that she would be coming to Singapore right from 07.03.2013 and further on 24.10.2013 when the respondent informed that she had purchased flight ticket for herself and her husband for Singapore and when the petitioner came to Mumbai and met with the respondent at the Airport itself and alongwith her went to meet her immediate boss to know why he was putting blockade in the way of her going to Singapore but there was no Bank in function and on enquiry from the security man it revealed that there is no Bank in function and this type of making false statement one after another just to suppress the fact she is neither M.B.A. and not working in any CITI Bank at Mumbai, which led to lose of faith of the appellant in the respondent and therefore he had filed the suit for dissolution of his marriage.
It has been submitted that the learned Principal Judge has failed to consider that the respondent and her parents knowingly and deliberately misrepresented the fact about her qualification and appointment and impressed falsely to get married to the appellant by playing fraud.
The learned Principal Judge has failed to appreciate the fact which has been deposed by the prosecution witnesses that the respondent in front of her brother and father when asked to show her educational certificates and appointment letter she went to her room and locked inside and consumed "Sindoor" whereupon this case was immediately brought to the knowledge of Mahila Thana, Hazaribag and thereafter she was taken to Sadar Hospital, Hazaribag and from there she went to her parental house at Gaya from the hospital itself because had this been true that she administered chemical, the petitioner and his parents would have been arrested immediately and thus the finding arrived by the learned Principal Judge is not correct.
It has further been submitted that the Matrimonial Title Suit No.70 of 2014 as preferred by the appellant was filed on 31.03.2014 and after much delay the two cases were filed by the respondent i.e Misc. Case No.80/14 and Complaint Case No.1250/2014 on dated 02.08.2014 and 24.07.2014 respectively. Thus, it has further been contended that learned Family Court has completely ignored the documentary evidence and has dismissed the case of the appellant on erroneous and extraneous consideration.
It has been submitted that the finding of the learned Principal Judge that the husband-petitioner could not prove any kind of cruelty committed upon him by the respondent-wife is not correct because the respondent and her relatives repeatedly given false information regarding educational qualification and working in CITI Bank at Mumbai and also leaving matrimonial house without any cogent reason and these all constituted mental cruelty to the petitioner since last eight years and thus on this ground the judgment and decree passed is bad and fit to be set aside.
Learned counsel for the appellant, based on the aforesaid grounds has submitted that the impugned order is perverse and is not sustainable under the law as also on the facts of the case.
Submission on behalf of respondent-wife:
Learned counsel for the respondent has submitted that since the learned Family court after considering the entire material available on record and after due appreciation has passed the order, which requires no interference on the following ground.
It has been contended that due to desertion and cruelty by husband and in-laws, she has been living in her parental home and in this regard, she had file one complaint case No. 1250/2014 u/s 498-A, 379, 323 & 504 of I.P.C. and 3/4 of D.P.Act, pending before the learned court of C.J.M., Gaya (Bihar).
It has further been submitted that the respondent/wife did not attempt to eat vermilion, rather she was administered chemical. She was treated at Sadar Hospital, Hazaribag and from Hospital she was taken back to her parental house at Gaya and her belongings remained at her matrimonial house and no case was lodged for this incident and after one week, he informed the matter to police who did not lodge a case and asked for compromise, therefore the contention of the learned counsel for the appellant that the respondent herself put vermillion in her mouth, is totally fallacious and not acceptable.
It has further been contended that as per the testimony of R.W.2, no Bio-data was provided in this marriage, therefore, the contention of the learned counsel for the appellant that wrong information about the educational background of the respondent has been furnished to the appellant by way of the Bio-data is not fit to be accepted.
Learned counsel for the respondent, on the basis of aforesaid ground has submitted that the impugned judgment passed by the learned family court requires no interference by this Court.
Analysis:
We have heard learned counsel for the parties and gone through the pleading available on record as also the finding recorded by learned family court.
Before learned family court, the parties have adduced evidence, both oral and documentary, in support of their case. Therefore, this Court before entering into the legality and propriety of the impugned order needs to appreciate the evidence on behalf of parties.
In order to prove and substantiate the petitioner has produced and examined altogether four witnesses.
P.W.1 Bhagwat Pathak: He is father-cum-Attorney Holder of the petitioner. He has deposed that at the time of marriage talk, maternal uncle and aunt of the respondent Sarika Kumari had assured him that Sarika Kumari has passed MBA from Banaras University and presently she is working in Citi Bank at Mumbai and this information has been ratified/confirmed by parents of respondent Sarika Kumari on 22.06.2012 and on getting such assurance that Sarika Kumari is qualified, the marriage between his son Santosh Pathak and Sarika Kumari was solemnized on 12.02.2013. He further deposed that after marriage both the couple went to Mumbai on 22.02.2013 and on 24.02.2013 his son went to Singapore and Sarika Kumari did not accompany him on the plea that her transfer is in process and she will join him at Singapore when the entire process of her transfer completes and on one pretext or other she went on fooling and refusing to go to Singapore. He further deposed that on 27.10.2013 his son brought her to Hazaribag and on 30.10.2013 in presence of her father and brother she explicitly stated that she would not go to Singapore as she is having bright career in Mumbai and on demand of educational certificates and appointment letter she went inside the room and eaten Sindoor, which case is immediately reported to Mahila Police Station, Hazaribag and thereupon she was taken to Hospital and on discharge her father and brother taken her to Gaya (Bihar). This witness has further deposed that a Panchayati took place on 22.12.2013 and 05.01.2014 at his village Malkera where people from both sides were present and there her educational certificates and appointment letters were asked to be produced but the relatives of Sarika Kumari failed to produce any paper. He further deposed that the relatives and parents of Sarika Kumari have cheated the family of this witness by giving such misinformation that she has passed MBA and she is working in CITI Bank at Mumbai because had they told the real fact, the marriage of his son and Sarika Kumari would not have taken place. He further deposed that Sarika Kumari has given wrong information with regard to her age in the Bio-Data and the opposite parties have tortured his son.
In his cross-examination he deposed that before marriage he had talk with bridal party and after their confirmation that the bride Sarika Kumar is MBA he agreed for the marriage of his son. The marriage talk continued for about eight months. At the time of first meeting even the bride had confirmed that she is MBA and is Manager in Citi Bank at Mumbai. He further deposed that on being satisfied with her Kundali and bio-data as well as the words of her father as her father is a respected family of the society he agreed for marriage of his son with his daughter. This witness has further asserted that although the bridal party has given her Bio-data but he could neither verify her bio-data nor he could verify the place where the bride was working and he kept on believing their words and the bio- data. Even after marriage, the bride had told this witness that there is a branch of Citi Bank in Singapore also and once she had been to Singapore and within one month, she would get transfer and would go to Singapore.
P.W.2 Santosh Pathak the petitioner/appellant - husband himself In his deposition, he has reiterated the entire statements what he has written in his Matrimonial Suit for decree of divorce. In para 4 of his deposition, he has reiterated that on being assured from the words of her parents and relatives as well as from her bio-data that bride Sarika Kumari is an Engineering Graduate and did her M.B.A. from BHU, this marriage was solemnized and this information was ratified on 20.06.2012 also by her parents and on being asked by this witness she had assured that she would come to Singapore after transfer from Citi Bank where she had already visited twice. On 24.02.2013 when this witness was going to Singapore for joining his duty, it was fixed that he would transfer money to the account of Sarika Kumari held with Bank of India and Sarika Kumari in turn would give the money to his father, but she never transfer any money to the father of the petitioner. On 07.03.2012 he was informed by Sarika Kumari through email that she has obtained Passport and on 14.03.2013 she informed that she would get the employment pass on next Tuesday but all of a sudden she informed that as per the orders of her higher authority she would now go to Singapore on 13.05.2013 and thereafter on one ground or other she continued to pretend for going to Singapore. This witness returned to Mumbai and met Sarika Kumari and shown his interest to meet her boss and she took him to the premises where she is working but there was no Bank functioning in the said premises. On 27.10.2013 this witness and Sarika Kumari came to Hazaribag where her father and brother also came and in their presence she flatly denied to go to Singapore as she has bright career in Mumbai itself. On demand of educational certificates and appointment letter she consumed Sindoor and the said incident was immediately reported to Mahila Thana, Hazaribag and thereafter she was taken to hospital and from there she went to Gaya after discharge. This witness further deposed that on 22.02.2013 and 05.01.2014 Panchayati took place in his village Malkera where besides respected members of the village both parties including her father were present and there also on demand of educational certificates and appointment letter nothing was produced. He further deposed that in order to prove that he has been cheated at the hands of the opposite parties, he recorded some talk between Sarika Kumari and her father/ brother on 26.10.2013 and 30.10.2013 which he has produced in the Court and which will prove that on one hand she tells that she is working in Citi Bank whereas in Case No. 80/14 as filed by Sarika Kumar, her father stated before the Court that she is neither Graduate nor she is working in Citi Bank. On 21.11.2013 when this witness had telephonic conversation with Sarika Kumar, she had threatened him with dire consequences. Due to her deceitful behaviour, it is very difficult for him to live with her and as such he filed the present case for dissolution of their marriage. In his cross-examination, he deposed that when the marriage talk was going on, he was in Singapore and that her family had sent her Kundali and Bio-data to his home address at Hazaribag which was emailed to him by his brother and when he met the girl at Dhanbad he enquired about her education and employment and neither he nor his father had put any condition before her that unless educational certificate and appointment letter are put before him, he would not agree for marriage, rather they believed the oral version of the girl and her parents. There is one dowry-cruelty case as well as Maintenance Case against him and his family members. If the respondent thinks to resume conjugal life, he would not agree. It is absolutely absurd that there was any demand of dowry from his side and the allegation of torture for demand of dowry and filing of this case is absolutely false and concocted.
P.W.3 Raunak Pathak - brother of the petitioner - This witness has also stated the same version what is written in the matrimonial suit. In cross-examination also he corroborated the statement what he has stated in his deposition. He has stated that before marriage his family members did not put any condition precedent of educational qualification. He has stated that the bio-data given by the parents of Sarika Kumari has never been verified by his family as her maternal uncle and aunt are their neighbors and as such they believed on their oral version. There is a 498A case as well as maintenance case against them. The petitioner and his family members did attempt to bring back the respondent but she never agreed. No case for restitution of conjugal right was lodged.
P.W.4 Ajit Kumar Pathak - Cousin of the petitioner - He has stated that applicant's family was cheated on the false and fraudulent information that Sarika Kumari is educationally qualified and is a working lady and had the bride party told the truth about Sarika's educational qualification and job, this marriage would not have taken place. A Panchayati took place on 22.12.2013 and 05.01.2014 at village Malkera, District Dhanbad where both groom party and bride party were present consisting of almost 30-40 members and along with respected members of the village and proceedings were prepared where all the members present in the panchayat signed on both days. In cross-examination he stated that at the time of seeing the girl there was no demand of any educational certificates and the groom party did not put any condition precedent of educational qualification, rather the bride party themselves have stated about the educational qualification of the bride.
The following documents were exhibited as evidence on the part of the petitioner:
(a) Ext.1 is Power of Attorney executed by the petitioner in favour of his father - P.W.1. It was duly attested by the High Commission of India at Singapore. Said attorney -the PW1-signed the main petition, affidavit etc. for the petitioner, but the husband as P.W.2 did come in the Court to support his case. Nothing wrong is found.
(b) Ext.2 is in four sheets. It is Bio-data containing academic background and work experience of the bride.
(c) Ext.3 is Kundli of bride. Both are either computer printed documents or photo copies.
(d) Ext-5 & 5/1 are two signatures over one panchayati document.
(e) Ext 4, 6 series are audio and video transcripts & their certificates as per 65A Evidence Act.
R.W.1 Nawal Kishore Trigunait father of respondent Sarika Kumari. In his cross-examination he deposed that his daughter is I.S.C. pass but could not complete bachelor degree. The respondent was working in a packaging company on contract basis. After marriage she did not pursue any job. She did not work in CITI Bank at Mumbai. Daughter never went to Singapore. At the instance of the petitioner, the respondent obtained her passport. The respondent did not eat vermillion, rather she was administered chemical. She was treated at Sadar Hospital, Hazaribag and from hospital she was taken back to her parental house at Gaya and her belongings remained at her matrimonial house. No case was lodged for this incident and after one week, he informed the matter to Police who did not lodge a case and asked for compromise and efforts for reconciliation took place.
R.W.2 Abhishek Trigunait brother of respondent Sarika Kumari. In his cross-examination he deposed that he was negotiator of this marriage and no bio-data was provided. She did not get educated from Mumbai. Prior to marriage, she was working in an educational packaging work at Mumbai and after marriage she left the job. The respondent never worked in CITI Bank at Mumbai. The respondent lived at her matrimonial house for only 15 days.
R.W.3 Sarika Parthak Respondent herself, in her cross-examination she deposed that she could not complete her graduation. She worked in Mumbai as material developer for some time. She was living as a paying guest at Mumbai. She left Mumbai after marriage. Her brother and sister were negotiators of this marriage. Bio-data and Kundli were not provided to petitioner party at the time of marriage. She went to her matrimonial house at Hazaribag after marriage. Since she was not having passport, she did not go to Singapore. She was paid with Rs. 1,40,000/- by the petitioner but it was not meant to her. She went to Mahila Aayog twice and lodged a written complaint also.
R.W.4-Subham Trigunait another brother of the respondent - In his cross-examination he deposed that he was not a participant in the marriage talk and he was not present on 04.11.2013 at matrimonial house of the respondent at the time of assault. He heard about demand of dowry.
The documents were also exhibited on the respondent side i.e. Ext.1 is C.C. of 125 of Cr.P.C. application filed by respondent Sarika Pathak against Santosh Pathak, before the Principal Judge, Family Court, Gaya while Ext.A/1 is C.C. of complaint petition of Complaint Case No. 1250/14 filed before the Court of C.J.M., Gaya.
The learned counsel for the appellant/plaintiff has argued that the evidence laid by him has not properly been considered and as such, the judgment suffers from perversity, hence, not sustainable in the eyes of law.
While on the other hand, argument has been advanced on behalf of the respondent-defendant that the judgment is well considered.
This Court while appreciating the argument advanced on behalf of the parties 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. 25. 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.””
In the backdrop of the aforesaid factual aspect seminal question arises for consideration herein is that whether the appellant/husband has made out a case for an order for dissolution of marriage under the Act, 1955.
Therefore, this Court before proceeding to deal with the respective submissions of the counsel as also before appreciating the evidence adduced on behalf of the parties, as taken note of above, deems it appropriate to have a glance to the relevant provisions which may assume some importance in addressing the issue. Section 5 of the Hindu Marriage Act contains the conditions for the valid marriage solemnized between any two Hindus. The said section is reproduced hereunder:
“5.Conditions for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insantity
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degree of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;”
Thus, the Section 5 of the Act 1955 provides that a marriage may be solemnized between any two Hindus if the conditions specified in the section are fulfilled. On a plain reading of the said provision, it is manifest that the conditions prescribed in that section, if established, disentitles the party to a valid marriage. Such conditions in the very nature of things call for strict standard of proof.
It needs to refer herein that the Section 7 of the Act relates to the ceremonies for the Hindu Marriage to be performed with Customary Rites of either party including Saptapadi i.e. taking of seven steps by bridegroom and bride jointly before the sacred fire to complete the marriage. The marriage shall be declared null and void at the option of either of the parties if it contravenes any of the provisions specified in Clause (i), (iv) & (v) of Section 5 of the said Act. Section 12 of the Act, which is pertinent in the present case, can be resorted to either of the parties for annulling the marriage as the grounds set fourth therein are satisfied. Section 12 of the Act is quoted below:
“12. Voidable marriages. - (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding any thing contained in sub-section (1), no petition for annulling a marriage:
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if:
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) On the ground specified in clause (d) of sub-section (1) shall be entertained unless the Court is satisfied:
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.”
Section 12 of the Hindu Marriage Act embodies grounds on which a marriage can be declared void and annulled by a decree of nullity. Clause (c) of sub-section (1) of the said section provides for such annulment, when the consent of the petitioner is obtained by force or fraud under circumstances mentioned in the said Clause. It is settled position of law that Section 12(1)(c) of the Hindu Marriage Act does not deal with fraud in a general way, nor deals with every misrepresentation or concealment, the object of which may be fraudulent.
Further it requires to refer herein the purport of the Section 13 of the Act 1955 contains the provision under which the marriage can be dissolved by a decree of divorce provided the ground enumerated therein are proved before the Court of competence jurisdiction.
Under the Hindu Law, a marriage is not a contract but sacrament. The Hindu Marriage Act has no doubt made an inroad into the close preserve of the ancient Hindu Law strongly suggesting the marriage as sacrament and not contract which still goes strong. The fraud contemplated by Section 12 of the said Act is not required to be interpreted in tune with the definition engrafted under Section 17 of the Contract Act. Both the Hindu Marriage Act and Contract Act are not pari materia as the former deals with marriages and the other deals with contract and commerce. Therefore, the definition of fraud given under the Contract Act cannot be brought with lock, stock and barrel to a marriage which is sacrament.
There are still strong reasons to hold that the Hindu Marriage is not a contract but sacrament, as the contract can at the will of the parties be dissolved but the parties who contract a marriage cannot except, of course, divorce by mutual consent as provided under Section 13B of the said Act.
It needs to refer herein that Marriage should not be allowed to be dissolved on grounds of less educational qualification of the either of the spouse.
Now this court is adverting to the issue of cruelty. The learned Family Judge has decided the said issue against the petitioner/appellant.
It needs to refer herein that the “cruelty” has been interpreted by the Hon’ble Apex Court in 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 Court deems 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.”
The nature of allegations need not only be illegal conduct such as asking for dowry. Making allegations against the spouse in the written statement filed before the court in judicial proceedings may also be held to constitute cruelty.
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.
Further in the case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288, the Hon’ble Apex Court has held as follows:—
“22. The expression “cruelty” has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.
After so stating, this Court observed in Shobha Rani case about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that : (SCC p. 108, para 5)
“5.… when a spouse makes a complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance.”
Their Lordships in Shobha Rani case referred to the observations made in Sheldon v. Sheldon wherein Lord Denning stated, “the categories of cruelty are not closed”. Thereafter, the Bench proceeded to state thus: (Shobha Rani case, SCC p. 109, paras 5-6)
“5.…Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.
These preliminary observations are intended to emphasise that the court in matrimonial cases is not concerned with ideals in family life. The court has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Reid observed in Gollins v. Gollins : (All ER p. 972 G-H)
‘… In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.’”
In the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 it has been held by the Hon’ble Apex Court as follows:—
Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
Thus, from the aforesaid settled position of law it is evident that “Cruelty” under matrimonial law consists of conduct so grave and weighty as to lead one to the conclusion that one of the spouse cannot reasonably be expected to live with the other spouse. It must be more serious than the ordinary wear and tear of married life.
Cruelty must be of such a type which will satisfy the conscience of the Court that the relationship between the parties has deteriorated to such an extent that it has become impossible for them to live together without mental agony. The cruelty practiced may be in many forms and it must be productive of an apprehension in the mind of the other spouse that it is dangerous to live with the erring party. Simple trivialities which can truly be described as a reasonable wear and tear of married life cannot amount to cruelty. In many marriages each party can, if it so wills, discover many a cause for complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage.
Since the appellant husband has also contended the issue of desertion therefore, it would be apt to discuss herein the element of “desertion”. It needs to refer herein that the word ‘desertion’ has been given in Explanation to Section 13 (1) of the Hindu Marriage Act,1955 wherein it has been stated that “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 willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”
It is pertinent to note that the word ‘desertion’, as has been defined in Explanation part of Section 13 of the Act, 1955, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wishes of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
Rayden on Divorce, which is a standard work on the subject at p. 128 (6th Edn.), has summarised the case- law on the subject in these terms:
“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.”
The legal position has been admirably summarised in paras-453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.), Vol. 12, in the following words:
“In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.”
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least two years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer.
Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted, desertion is a continuing offence.
It is, thus, evident from the aforesaid reference of meaning of desertion that the quality of permanence is one of the essential elements which differentiate desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end.
Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to from the necessary intention aforesaid.
The Hon'ble Apex Court in Debananda Tamuli vs. Kakumoni Kataky, (2022) 5 SCC 459 has considered the definition of ‘desertion’ on the basis of the judgment rendered by the Hon'ble Apex Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40 which has been consistently followed in several decisions of this Court.
The law consistently has been laid down by the Court that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.
Thus, from the aforesaid settled position of law, it is evident from the interpretation of the word “cruelty” that daily tear and wear is not construed to be the cruelty while on the other hand desertion means parting away one spouse from the other, but while deciding the issue of desertion the factum of parting away is to be seen as to whether the parting away is due to compulsion or with her volition.
Bearing in mind the principles, which flow from a fair reading of the statutory provisions as noted above, we proceed to examine whether the appellant has succeeded in establishing his case for dissolution of marriage and for coming out such conclusion we again delve into the testimonies of the witnesses as also the exhibits available on record as also submissions advanced on behalf of parties.
The case of husband-petitioner/appellant is that at the time of marriage the wife-respondent and her family members furnished false information that the wife-respondent is an MBA and was working in CITI Bank at Mumbai. It was false information and had she be not an MBA and working in CITI Bank, he could not have married. 86. The wife-respondent has denied this case of husband- petitioner and as per testimony of the respondent witnesses it is evident that respondent and her relations also categorically admitted that she could not complete graduation and she was never working in CITI Bank.
It is pertinent to mention here that from the testimony of P.W.3 it is evident that the educational qualification for bride was not a condition precedent of marriage. Further it has come on record that the talk of the marriage negotiation continued for about eight months, therefore certainly the groom party had got opportunity to cross check and verify the claim.
Thus, on the basis of the aforesaid factual aspect it is evident that claim of husband-petitioner that the wife- respondent suppressed / misled her educational qualification is not fit to be accepted, therefore no element of Section 12(1) (c) is available herein.
The learned Family Court taking into the consideration the aforesaid factual aspect has categorically observed that the husband-petitioner could not prove that there was fraud as to material fact or circumstance.
Further case of the appellant/husband is that the wife-respondent deliberately did not join him at Singapore and was lying every now and then regarding her transfer from Mumbai to Singapore.
Herein he respondent-wife herself and her other R.Ws. in clear terms admitted that respondent-wife never worked with CITI Bank.
Admittedly the suit for dissolution of marriage filed by the husband-petitioner as such as per the settled position of law it is his burden to prove his case/claim, however, in this regard the husband-petitioner/appellant only made oral claim and no cogent evidence has been laid by him.
It is evident from impugned order that the learned Family Court has put specific question to the appellant that did he ever arrange the air-ticket of wife-respondent and still she did not go? But the said question has not been answered by him. mere oral claim of husband-petitioner that the wife-respondent was lying regarding her transfer to Singapore, won't suffice.
Further there is admitted Dowry/cruelty criminal case lodged by wife-respondent which is still sub-judice and There is no concrete proof that the respondent-wife left the matrimonial house without any cogent reason.
Further case of the husband-petitioner is that there was cruelty upon him by the wife-respondent which the wife-respondent denied claimed contrary. After due appreciation of all the evidences the learned Family Court has specifically opined that the husband-petitioner did not specify what cruelty was practiced upon him by the respondent-wife.
This Court, based upon the aforesaid discussion, is of the view that the appellant/petitioner has failed to establish the element of perversity in the impugned judgment as per the discussion made hereinabove, as such, this Court do not find any merit in the appeal.
Accordingly, the instant appeal fails and is dismissed.
Pending interlocutory application(s), if any, also stands disposed of.