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Judgment
The present misc. appeal is filed by appellant-husband
assailing the judgment & decree dated 22.11.2011 passed by ld.
Family Court No.1, Jaipur, wherein the application filed by the
husband under Section 13 of the Hindu Marriage Act seeking
decree of divorce on the ground of cruelty and desertion has been
dismissed.
The facts in nutshell are that the marriage of the appellant
and respondent was solemnized on 17.07.1994 as per the
customs and traditions prevailing in Hindu community and out of
the said wedlock, a girl child was born on 27.08.1996.
The appellant filed an application under Section 13 of the
Hindu Marriage Act, 1955 on 19.03.2004 before the Family Court,
Jaipur. The appellant pleaded in his application that respondent-
wife immediately after marriage, on first night disclosed that her
marriage was solemnized without seeking her consent and she
was forced to give the consent due to her father not being alive
and as such, the marriage was under compulsion. It was alleged
that the respondent-wife refused to stay at her matrimonial house
and she went very often to her parents'' house and used to reside
there for considerable time. She tried to avoid company of the
appellant and her visit to her parents'' house was a daily routine,
and in spite of several requests, the respondent-wife did not stay
at matrimonial home.
It was alleged that the behaviour of the respondent-wife was
quite rude and non-cooperative towards family members of the
appellant. She did not participate in normal household work at her
matrimonial home. It was alleged that the respondent-wife had
gone to Assam after seeking permission of the appellant and she
insisted that appellant should shift there and stay with her. When
the appellant came to know about respondent being pregnant, he
requested her to stay at matrimonial home to deliver the child but
she went to her parents'' house. The appellant pleaded that the
respondent had gone to Assam on death of her brother, namely,
Chandra Prakash and after the death of her brother, the
appellant''s father had gone to Assam to bring her back but she
refused to come back. The appellant pleaded that the respondent
was determined to stay at her own parents'' house and as such,
she deprived him from matrimonial company. The appellant
pleaded that on all social occasions in the family like engagement
of his brother, religious function, death of uncle of appellant, the
respondent-wife did not come at all and all these acts caused
mental cruelty to the appellant.
The appellant pleaded that the respondent-wife had left
matrimonial home permanently by deserting him on 25.09.1996
and he was also deprived of love and affection of his daughter. The
appellant sought a decree of divorce on these averments.
The respondent-wife filed reply and denied the allegations of
cruelty as well as of desertion. In brief, the respondent pleaded
that the mother of the appellant was cruel to her and she used to
misbehave. It was pleaded that the respondent and appellant had
gone to Vaishno Devi immediately after marriage and their
relations were normal but after some time, she was scolded and
was beaten. It was pleaded that when the respondent''s close
relatives died, no body came from the appellant''s side to attend
social functions. It was pleaded by her that she had gone to her
in-laws house in December, 1996 with her daughter and there, her
daughter was seriously ill and the appellant did not take her
daughter to the doctor and on 19.01.1997, she was sent back to
her parents'' house and since then, she was staying there and no
efforts were made by the appellant to bring her back and she
pleaded that she did not want a decree of divorce. She wanted to
live with the appellant-husband.
On the basis of the pleadings of the parties, the following
issues were framed-"VERNACULAR MATTER OMITTED"
The appellant in support of his case got himself examined as
PW-1 and Kamal Mishra as PW-2. In defence, the respondent
produced herself as DW-1, her elder sister Sangeeta Sharma as
DW-2 and her elder sister Sarita Sharma as DW-3.
The Family Court on the basis of evidence on record has
come to the conclusion that neither the ground of cruelty nor of
desertion is proved and as such, has rejected the application filed
by the appellant-husband.
The learned counsel for the appellant submitted that the trial
court has erred in giving finding on both the issues and the
evidence has not been considered in right perspective while
rejecting the application filed by the appellant.
The learned counsel for the appellant has made submission
that there was ample evidence to prove that appellant had
suffered mental cruelty by the various acts pleaded and proved in
the case. It has been submitted that the Family Court has failed to
consider that the appellant and his family members tried there
level best to reconcile the differences of husband and wife and on
several occasions, they wanted to resolve the controversy
between the parties. It is argued that the respondent-wife was
adamant to reside separately from the appellant without any just
and reasonable cause, which definitely amounted to an act of
cruelty as the appellant was deprived from matrimonial company
of his wife.
The learned counsel for the appellant has argued that there
was enough evidence on record to prove that right from the first
day of marriage, the wife due to her stubborn attitude and having
no interest to share anything with her husband had indulged in act
of cruelty.
The learned counsel for the appellant has further argued that
the issue of desertion has wrongly been decided against the
appellant. The Family Court failed to see that appellant and his
family members requested several times the respondent to
discharge her marital obligations and to stay with the appellant.
The learned counsel has argued that finding of the court below
that since no application under Section 9 of the Restitution of
Conjugal Rights was filed, an adverse inference should be drawn
against the appellant, is misconceived.
The learned counsel for the appellant has argued that the
respondent herself had admitted in her statement that she was
living separately since 1996 and yet decree of divorce has been
declined.
Per contra, the learned counsel for the respondent has
argued that there is no illegality in the judgment & decree passed
by the Family Court. The grounds raised by the appellant for
claiming decree of divorce were not proved and urged that
impugned judgment & decree requires no interference by this
Court.
We have heard the learned counsel for the parties and
considered the material on record.
A perusal of the impugned judgment shows that the Family
Court though had framed separate issues of cruelty and desertion,
however, the separate findings have not been recorded on each of
the issues.
Cruelty, which is a ground for dissolution of marriage, is
willful and unjustifiable conduct of such character as to cause
danger to life, limb or health, bodily or mental or as to give rise a
reasonable apprehension of such a danger. The mental cruelty falls
within purview of a matrimonial wrong. The cruelty has been used
in relation to human conduct and human behaviour. It is the
conduct in relation to or in respect of matrimonial duties and
obligations. Cruelty is a course or conduct of one, which is
adversely affecting the other. Cruelty can be intentional or
unintentional. Cruelty in matrimonial life may be of unfounded
variety, which can be subtle or brutal. It may be by conduct,
words, gestures, by a mere silence, violent or non-violent.
The various decisions of the Apex Court lay down the
principle of adjudging the cruelty. The Apex Court in the case of
Narendra Vs. K.Meena [(2016) 9 Supreme Court Cases
455], while dealing with the issue of mental cruelty by leveling
baseless allegation without foundation has found it to be a very
serious nature and it has been held that such kind of baseless and
false allegation surely can be a cause for mental cruelty. The Apex
Court has held in the said judgment as under:-
"15. With regard to the allegations about an extra- marital affair with maid named Kamla, the re- appreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had levelled allegations with regard to an extra-marital affair of the appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one''s character of having an extra-marital affair is quite torturous for any person - be it a husband or a wife.
We have carefully gone through the evidence but we could not find any reliable evidence to show that the appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra- marital life to be quite serious and that can surely be a cause for metal cruelty.
This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, has held as under:-
"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult
and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."
The close scrutiny of the statement of appellant reveals that
the respondent right from the initial days of her marriage was not
interested in staying with the appellant. The respondent was in
frequent habit of leaving the matrimonial home without any
cogent reason and she has deprived the appellant from the
matrimonial company. There is further ample evidence to prove
the fact that on several efforts being made to persuade the
respondent to come back by the relatives of the appellant, failed
and she had never shown her inclination to stay with the
appellant. The Court also finds that on several social occasions,
the company of wife-respondent was required and as such, the
respondent always failed to participate and did not show her
involvement in appellant''s social life. We also find that merely by
birth of a child within two years of marriage, does not lead to
situation where it can be presumed that appellant was having a
normal matrimonial life. The long period of separation, lead to
mental cruelty for a husband.
The extract of cross-examination of the appellant for the
present purpose is reproduced as under:-
"VERNACULAR MATTER OMITTED"
We have further closely examined the testimony of
respondent-wife and we find that she had taken shelter of not
going to matrimonial home by saying that she was illtreated by
her-inlaws. She has further taken a plea that on account of death
of her brother in family, the appellant did not come. The said plea
taken by the respondent does not justify her action of not staying
with her husband-appellant and to maintain a normal matrimonial
life.
The extract of cross-examination of the respondent, being
relevant for the present purpose is reproduced as under:-
"VERNACULAR MATTER OMITTED"
The Court finds that the finding of the ld. Family Court is not
based on correct appreciation of facts which have come on record.
The Family Court has misdirected itself in reaching to the
conclusion that non-staying of respondent with the appellant was
of not a great significance. On the contrary, this Court finds that
the appellant was deprived of company of his wife for no
justifiable reason and as such, it amounted to mental cruelty.
For establishing the ground of desertion as far as deserting
espouse is concerned, two conditions are necessary: (i) the
factum of separation and (ii) the intention to bring cohabitation
permanently to an end (animus descerendi). Similarly, two
elements are essential so far as the deserted spouse is concerned:
(i) the absence of consent and (ii) absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home to
form the necessary intention.
The Apex Court in the case of Malathi Ravi, M.D. Vs.
B.V.Ravi, M.D., (2014)7 Supreme Court Cases 640 has laid
down the law for proving the desertion. Inferences may be drawn
from certain facts of those acts or by conduct, expression of
intention, both anterior and subsequent to the actual acts of
separation. The relevant para is quoted here under:-
"18. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the petition and the evidence adduced by the parties and the
judgment of the Family Court and that of the High Court. The plea that was raised for grant of divorce was under Section 13(1)(i-b) of the Act. It provides for grant of divorce on the ground of desertion for a continuous period of not less than two year immediately preceding the presentation of the petition. The aforesaid provision stipulates that a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion, as a ground for divorce, was inserted to Section 13 by Act 68 of 1976. Prior to the amendment it was only a ground for judicial separation.
Dealing with the concept of desertion, this Court in Savitri Pandey v. Prem Chandra Pandey has ruled thus:-
"Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for example, anger [pic]or disgust without intending permanently to cease cohabitation, it will not amount to desertion."
In the said Savitri Pandey case, reference was also made to Lachman Utamchand Kirpalani''s case wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). 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 form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation."
The ground of desertion which has not been found proved by
the ld. Family Court, needs a closer scrutiny to find out whether
the wife had voluntarily deserted her husband or she was forced
to leave company of her husband by creating such an atmosphere
by appellant.
The closer scrutiny of the evidence, clearly reveals that the
respondent-wife after delivery of her child in her own parental
house, did not stay with the appellant. There is further evidence to
show that the efforts which were made to bring her back also
failed. The Court further finds that respondent herself has
admitted in her cross-examination that she was staying separately
since 1996.
This Court is of the opinion that the ld. Family Court has not
considered the evidence in right perspective with respect to
ground of desertion. The appellant had proved that it was the wish
of the respondent that she should not stay in her matrimonial
home and she avoided the same by one pretext or the other. The
long separation results in break in matrimonial bond and it
becomes irreparable by passage of time.
The Court finds that the issue of desertion was proved by the
husband and as such, he was entitled for decree of divorce.
Accordingly, the findings on both the issues of cruelty and
desertion being perverse and contrary to material on record, are
set aside. .
Consequently, the appeal filed by the appellant is allowed
and the judgment & decree dated 22.11.2011 passed by the
Family Court No.1, Jaipur is set aside. Their marriage solemnized
on 17.07.1994 stands dissolved and the appellant-husband is held
entitled for the decree of divorce. Registry to do the needful. No
costs.