Monday, July 22, 2013
Cruelty against Husband and ground for Divorce.
Anil Bharadwaj v Nimlesh Bharadwaj (AIR 1987 Del 111)
According to this case a wife who refuses to have sexual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband.
Mrs. Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16)
In this case petitioner/wife filed a false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as false in a court of law so it can be considered as cruelty against husband.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.120 OF 2009
CIVIL APPLICATION NO. 174 OF 2009
Mrs. Deeplakshmi Sachin Zingade ) Age 31 years, occ. Temporary service, residing at ) C/o. Pawaskar Faizal Hasan ) Flat No. D-3/3, Ganga Heights, Pingle Wasti, ) Mundhwa Road, Pune-411 036 )..Appellant versus
Sachin Rameshrao Zingade, ) Age 33 years, Occ. Service, residing at Flat No. 301-A ) Ganga Garden, Pingale Wasti, Mundhwa Road, ) Pune-411 036 )..Respondent Mr. Uday P. Warunjikar for the appellant.
Mr. A.B. Avhad for the respondent.
CORAM: P.B. MAJMUDAR &
R.V. MORE, JJ.
Judgment reserved on : 10 September, 2009
Judgment pronounced on: 24 September,2009
JUDGMENT: (Per P.B. Majmudar, J.)
1. Admit. With the consent of the learned counsel appearing for the parties, appeal is taken up for hearing forthwith. Learned counsel for the respondent waives service.
2. This appeal is directed against the judgment and order passed by the learned Judge of the Family Court at Pune dated 29th May, 2009 in Petition No. A-230/2008 by which the learned Judge allowed the petition filed by the respondent and marriage between the petitioner and the respondent therein is dissolved by decree of divorce under Section 13 of the Hindu Marriage Act (hereinafter "the Act"). It is the aforesaid decree of the trial Court which is impugned at the instance of the appellant, original respondent to the said petition.
3. The respondent herein instituted the said petition under Section 13 (1) (ia) of the Act. It is the case of the respondent before the Family Court that the marriage between him and the present appellant was solemnised on 17th February, 2002 at Udgir, District Latur according to Hindi Vedic Rites. After the marriage, the appellant lived and cohabited with the respondent and there is one daughter out of the said wedlock namely Samiksha born on 8th October, 2003. It is the case of the present respondent that the parents of the appellant wanted ghar jamai and insisted that the respondent herein should shift to Latur and live with her parents to which the respondent did not agree. Thereafter, the parents of the appellant shifted to Pune and insisted that the respondent should shift to another house so that the parents of the appellant can live with them. It is also the case of the respondent that the appellant was having grievance about -3-
keeping the parents of the respondent with them. According to him, his mother is a cancer patient and his father is suffering from hypertension and heart ailments and, therefore, he cannot leave them. It is also the case of the respondent that the appellant would pick up quarrels everyday and she did not cook food for them and had levelled allegations against father of the respondent. The appellant also made allegations against the respondent that he is having affairs with a female colleague which led to frequent quarrels between them. She threatened even to file false complaint against him and his parents. The appellant also refused to cook the food and she was exhibiting her unhappiness at the time when the sisters of the respondent used to visit their house. It is also the case of the respondent that the appellant did not like any of the friends of the respondent or colleagues of the respondent who visit the house. It is also his case that in October, 2007, the parents of the appellant shifted to Pune temporarily. Mother of the appellant came to live in their house. She occupied the bedroom of the respondent and he was forced to sleep in the living room. It is also his case that on 3rd November, 2007, appellant filed a false case under the Domestic Violence Act and the appellant succeeded in making respondent to take another flat for her to live separately since 10th December, 2007. It is also the case of the respondent that the appellant is serving as a Lecturer in Women's Engineering College at Pune and earning Rs. 20,000/- per month. On these and such other grounds, the petition for divorce was filed by the present respondent before the Family Court.
4. The aforesaid petition was opposed by the present appellant, who was respondent in the sad petition and a reply was filed by her at Exh. 15. It is the case of the appellant herein before the Family Court that she is cultured, educated and homely woman and that her brother is an Electronic Engineer who is able to take care of her parents. She denied the fact that she was having any desire that the respondent should be a Ghar Jamai and that she is always interested in the joint family and she never even insisted that the respondent should live separately from the parents. It is her case that she has always performed her duties as a wife and daughter-in-law and she is prepared to perform the same in future. It is her case that she was always treated as an outsider by the parents of the respondent. She used to cook food for the family and used to do the household work. In spite of the same, she was blamed by her in-laws. It is her case that she had taken part in making various preparations at the time of the marriage of respondent's sisters and she also took care of their deliveries. It is her case that she worked for two years after the marriage and at that time she used to hand over the entire salary to the respondent. It is her case that the respondent was having affairs with one Shaila Omprakash Lashkari. The said Shaila is working with the respondent and she is living alone being a divorcee. After the divorce of the said Shaila from her husband, the behaviour of the respondent towards the appellant was changed. He would return home late and some time would not return for the entire night. He would bring Shaila -5-
at the matrimonial home and they were sharing the food with each other in the same plate. The respondent was neglecting the appellant and he would go for outing with the said Shaila, leaving the appellant and the daughter alone. It is her case that on 14th October, 2007, the parents of the respondent tried to strangulate her. The daughter after seeing this became speechless for few days. In view of the said incident, the appellant filed a complaint under the Domestic Violence Act and prayed for a separate accommodation. It is also the case of the appellant that the respondent thereafter was coming and meeting the appellant and the daughter and used to stay overnight and in fact they had physical relations also. It is her specific case that it is only because of Shaila that the respondent wants to destroy the family. It is her specific case that she is interested in continuing the marital relations and co-habit with the respondent. On the aforesaid grounds, it is prayed that the petition is required to be dismissed.
5. The learned trial Judge framed various issues and after considering the evidence on record came to the conclusion that the respondent has proved that the appellant has treated him with cruelty. The learned trial Judge accordingly granted decree of divorce. The aforesaid order is impugned at the instance of the appellant-wife in this appeal.
6. Mr. Warunjikar, learned counsel appearing for the appellant, submitted that the learned Judge has completely misread the evidence in coming to the conclusion that the respondent was subjected to cruelty at the hands of the appellant. It is submitted that from the evidence on record it can never be said that the appellant had committed any act of cruelty. On the contrary, the appellant tolerated even the relationship of the respondent with a girl viz. Shaila and even today she is willing to go with the respondent and she is ready to tolerate even the relationship of respondent with the said lady in order to maintain marital relationship as also future of the minor daughter. The learned counsel for the appellant has submitted that from the evidence on record, it is established that the respondent was having intimacy with the said lady and that was the main cause for disputes between the appellant and the respondent. If the appellant was required to file a complaint under the Domestic Violence Act, filing of such complaint in a given case itself cannot be said to be an act of cruelty, unless it is ultimately found that the said complaint is false and bogus, which is not the case herein. Learned counsel further submitted that the said lady Shaila had divorced her husband and thereafter the respondent started behaving badly with the present appellant and was humiliating her in the presence of the said Shaila. It is submitted that if at all there is an act of cruelty, it was on the part of the respondent and not on the part of the appellant. No wife would tolerate any relationship of husband with any other lady in her presence. It is submitted by Mr. Warunjikar that the respondent used to take -7-
food in one plate together with the said Shaila. The respondent used to come very late at night and some time he would not come at night. It is submitted that from the evidence it is established that the respondent and the said lady Shaila were chatting on internet regularly and they used to go in the hotel together, leaving the appellant and the daughter alone in their house. It is submitted that the case filed under the Domestic Violence Act is still pending. In that view of the matter, it cannot be said that the appellant has filed any false case and the learned Judge of the Family Court has gravely erred in relying upon the pendency of the said case. It is submitted by Mr. Warunjikar that if filing of such case itself is treated as cruelty, no wife can ever file any case. It is submitted that since out of anger, her in-laws tried to strangulate her that she was forced to file the aforesaid complaint. It is submitted that thereafter even though she is residing in the separate house provided to her, the respondent used to visit her house regularly and they were having physical relationship as well. Mr. Warunjikar submitted that today also appellant is willing to go and reside with the respondent.
7. Learned counsel for the respondent submitted that the Family Court has rightly appreciated the evidence on record and has rightly passed the decree for dissolution of the marriage. The learned counsel further submitted that in view of the nature of the work, the respondent often required to come after mid- night. That is not enough for the appellant to make any grievance in this behalf. -8-
It is submitted that false allegations were made against the respondent under the Domestic Violence Act. It is submitted that she used to have quarrel with his parents regularly and she made false allegation about strangulation attributed to his parents. It is submitted by the learned counsel for the respondent that the appellant is not willing to stay with his parents. It is further submitted that so far as girl Shaila is concerned, she is a family friend and, therefore, simply because she is coming regularly at the matrimonial house where the appellant and the respondent are staying with the parents of the respondent, it cannot be presumed that the respondent was having any relationship with the said lady. Learned counsel submitted that simply because the said lady is working along with the respondent, it cannot be presumed that the respondent is having any type of relationship with the said lady.
8. During the pendency of this appeal, an attempt was made for settlement and the appellant and the respondent both had agreed to go together to Pune where both of them are residing. However, learned counsel appearing for the appellant submitted that though both of them travelled together in the train, at Pune Station the respondent refused to take the appellant at his house. The learned counsel for the respondent has also not disputed this fact. The matter, therefore, could not be settled and,therefore, now the Court is required to consider as to whether from the evidence on record, the act of cruelty can be said to have been established.
9. We have also gone through the oral and documentary evidence on record submitted by the learned counsel for the parties, heard the rival contentions of the parties and have gone through the impugned judgment and order of the learned trial Judge.
10. Examination-in-chief of the respondent in the form of affidavit was tendered at Exh. 22. He has reiterated the averments made in the application. In his affidavit he has stated that since one year the appellant has refused to have any physical relations with him and that whenever any of the friends or colleagues of the respondent visit the house, the appellant was insulting them and used to say that the appellant is having worthless friends. She used to enquire from his friends as to whether the respondent is having any women employees in his Company and she used to check up from the office of the respondent as to whether he was in office or had gone out with some woman. She used to enquire as to whether the respondent was regularly coming for work and was having any affair with other woman. In his affidavit he has averred the same thing which he has stated in his petition.
11. The respondent was cross-examined by the present appellant. In para 25 of his cross-examination he has admitted the fact that Shaila is his colleague working with him and she is working as a Associate Project Manager along with him. In his cross-examination he has stated that at present she is a divorcee. -10-
However, he has denied the suggestion that in the presence of the present appellant, he has taken Shaila very close to him. He denied the suggestion that she visited the house for about 100 times. He admitted the fact that he had told the appellant that she is his friend. He, however, denied the suggestion that he had brushed his fingers in her hair in the presence of the present appellant. In para 27 of his cross-examination he has admitted the fact that at the time of marriage he was working with Versaware Technology, Koregaon Park, Pune. He left the said Company in October, 2003. Shaila was also working with him in Versaware Technology and she changed her job and thereafter the respondent also changed his job. He has also stated in his cross-examination that her two sisters married after his marriage and Shaila also attended the said marriage. He has admitted the fact in para 26 of his cross-examination that the child was born about one and half years after the marriage and during the initial period of pregnancy the appellant was working. The respondent has also admitted the fact that he had been to U.S.A. in the year 2005. One Gouri Joshi was his boss at that time. He denied the suggestion that the appellant has never telephoned to the said Gouri Joshi and the said Gouri Joshi also stated that Shaila was not with him in U.S.A. He has denied the suggestion that as he wanted to marry Shaila that he is taking divorce from the appellant. In his evidence he has stated that he is getting Rs. 70,000/- as his salary.
12. The appellant also filed her affidavit in lieu of examination-in-chief at Exh. 31 wherein an averment has been made in connection with the relationship of respondent with Shaila. She has also narrated about the ill- treatment meted out to her by her in-laws. In the cross-examination she has admitted the fact that she has filed a complaint under the Domestic Violence Act before the Cantonment Court, Pune. She has admitted the fact about the alleged relationship of respondent with the said Shaila. She has admitted the fact in her cross-examination that she had not withdrawn the complaint filed under the provisions of the Domestic Violence Act before the Cantonment Court, Pune, and the same is still pending. She has stated that they were living in a joint family consisting of parents and sisters of the respondent and that she loves and respects her in-laws and sister-in-law. A question being put to her in the cross- examination as to whether it is possible for her to renew her relationship with the parents of the respondent. She, however, gave answer that she is not willing to live an animal life.
13. From the evidence on record it is clearly established that the respondent was having relationship with one Shaila prior to the marriage. The said Shaila thereafter married but gave divorce to her husband within short period of her marriage. It is the specific case of the appellant that the relationship between the appellant and the respondent started worsening after the divorce of the said lady Shaila. It is required to be noted that initially for -12-
some time the appellant and respondent were going on well and in fact a girl child was born out of the said wedlock after one and half years. The relationship strained after the said Shaila obtained divorce from her husband. It is as such not disputed by the respondent that he used to come late practically at mid night. A housewife would normally expect her husband to be at home within reasonable time at night. In fact, in a given case, such type of conduct on the part of the respondent itself amounts to cruelty to the wife. In our view, if the husband regularly comes late at night after midnight any wife can have reasonable apprehension about the character of her husband. It is not possible for us to accept the submission of the learned counsel for the respondent that looking to the nature of his duties, he was required to come late at night. Even if that be so, it is always expected from the husband at least to inform the wife on telephone that she may not wait for him for long and he may come late at night or he may not come at all. The appellant herein after delivering the child did not receive proper attention from the in-laws which can easily be presumed from the circumstances of the case. At one point of time, learned counsel for the appellant tried to suggest that because a girl child was born that the attitude of her in- laws was changed. However, on this aspect, it is not possible for us to say anything as there is no satisfactory evidence on record produced by the appellant in this behalf. As per the evidence, after the divorce of Shaila with her husband, that the respondent started behaving in a different manner towards the appellant. The fact that the appellant was required to wait upto midnight for -13-
arrival of her husband at home without any information can be an act of cruelty on the part of the husband to the wife. In the facts and circumstances of the case, if the appellant was making an enquiry about the whereabouts of her husband and when she is having reasonable apprehension that he is in the company of somebody else, there is nothing wrong on the part of the wife to make enquiries from the colleagues of her husband. There is no reason for the wife to make false allegations as it is not in dispute that the respondent was having friendship with the said lady Shaila. It is the case of the appellant that even in her presence, the respondent and said Shaila used to take snacks from one plate and naturally the appellant felt humiliated as no lady would tolerate presence of other lady taking liberty with the husband in her presence. It is nothing but a humiliation to the appellant wife. It is true that the respondent can have a lady friend. He has stated in his evidence that she was his friend but to bring the lady at the matrimonial home and behave in a particular manner in the presence of his wife, in our view, cannot be a justifiable act on the part of the husband. It is not the law that even if the wife makes any legitimate grievance or complaint or even or pick up quarrel on a justifiable ground, then also it amounts to cruelty to the other side. Either husband or the wife are entitled to point out their legitimate grievance before each other and even if there is some exchange of words, it cannot be treated as an act of cruelty. In the instance case, from the facts and circumstances and evidence on record, we are of the view that the appellant was justified in making necessary enquiries about -14-
her husband as he was not often coming home upto mid night from the office.
14. In her affidavit of evidence, the appellant has stated that she tried to cooperate with the family members and in fact she had taken great interest at the time of marriage of her sister-in-laws. In her affidavit of evidence, she has stated as under in paras 2 to 4.
"2. I have complied with responsibilities of a wife and a daughter-in-law very good on shifting with in-laws and am ready in future also. I have respected the in-laws properly and have treated them as parents. But the in-laws never treated me properly as Laxmi for house, but has treated me as a third person. In-laws have always treated me worstly. I have complied with all house responsibilities properly. I was looking after all family members with cooking and cleaning, w.c., bath room. I was serving all their favourite dishes, since i like cooking. And I was providing morning breakfast, tiffin for applicant. Also 2 sisters of applicant married after marriage of applicant, when I have looked after them properly during marriage and visit for delivery.
3. I was working for about 2 years after marriage. But I have never ignored my duty during working also. I was leaving to work on cooking for all family members and looking after other business, so that my mother-in-law should not require to do same works. But the in-laws were blaming me, when I
was looking after all business. Also I was allowed to work on condition to handover all salary to in-laws. I was handing over my monthly salary to in-laws. So the applicant did not require to spend for his parents.
4. Applicant has a girl friend Shaila Omprakash Lashkari prior to the said marriage. Said lady is working with applicant in his office and residing alone. Applicant had told me after marriage that said lady is his good friend and actually she wanted to marry her, but it could not succeed due to some
reason. Said Shaila Omprakash Lashkari married to Amit -15-
Choudhary after about 2 years after marriage of applicant and myself. But then I learnt from applicant about Shaila Lashkari divorced in about a year only. But the behaviour of applicant changed on divorce of said Shaila Lashkari. Applicant was returning home late or severely he was returning home next day directly without returning home the whole night. Also he was bringing home Shaila Lashkari, eating in a dish with her, moving hands from her hairs, talking to her with ignoring me and then was moving to drop her at home in the late night, etc. Also applicant was talking for hours over internet chating or mobile with Shaila Lashkari. Also applicant was taking Shaila Lashkari for tour or in hotel with keeping me and our daughter in home severally. I requested the applicant severally not to contact the said lady and he is required to look after his daughter now and tried to tell to look for daughter future but the applicant was beating me on threatening on my talking about said lady. But I was and is thinking today not to spoil life due to the said third lady and it should not affect adversely n the daughter life, hence I acted nothing legally."
15. Nothing substantial has been brought out from the cross-examination regarding the above evidence. Considering the said aspect, the allegation of the wife about relations of the respondent-husband with the said lady Shaila, itself can be treated as an act of cruelty on his part.
16. So far as filing of the case under the Domestic Violence Act is concerned, the learned Counsel for the appellant submitted that because of the ill-treatment and acts of incidents out of anger at the hands of in-laws, she was subjected to strangulation which forced her to file the complaint. Except this solitary criminal complaint, she has not filed any other complaint. It is required to be noted that the said case is still pending. The competent court has not found -16-
that it is a false complaint. In our view, filing of the complaint itself can never be considered as an act of cruelty unless it is found by positive evidence that it was a false complaint. The said complaint has not yet been decided and is still pending. When the said case is pending before the competent court, the learned trial Judge should not have given so much weightage about the factum of filing of such complaint and trying to find out as to whether the allegations in the said complaint are correct or not. If ultimately the said complaint is dismissed, naturally one can presume that the wife is guilty of filing false cases and making reckless allegations against the husband. When the Act permits the wife to approach the Court under the provisions of Domestic Violence Act and if that remedy is availed of, such act should not be treated as an act of cruelty, otherwise in no case a lady can file any complaint, if the filing of complaint is to be treated as an act of cruelty. Simply because the wife in her cross-examination admitted that she did not want to live an animal life and that she is not interested in marital life, one cannot jump to a conclusion that the wife is at wrong. A wife is also entitled to have her own freedom after marriage. In the instant case, even during the time of pregnancy, she was serving and was required to do household work after coming from the office. It is the case of the appellant that she was never treated as a family member of the respondent or her in-laws. The allegation regarding strangulation made by the appellant against the father-in-law is the subject matter of case under the Domestic Violence Act. The learned trial Judge, in our view, has gravely erred in coming -17-
to the conclusion that since there is no police complaint filed by her or medical report regarding strangulation and that being a serious allegation, the genuineness of the said case cannot be believed. Whether the allegation is false or not is a matter of investigation before other competent court. In our view, the learned trial Judge has erred in holding that if the appellant was subjected to inhuman treatment being an educated lady she would file police complaint and would go for medical examination for herself.
17. Regarding allegation about illicit relationship of the respondent with Shaila, the learned trial Court has observed in paras 44 and 45 thus: "44. Respondent has in her cross examination has reconfirmed that in her complaint under Domestic Violence Act she has alleged that petitioner has illicit relations with Shaila Lashkari. She has alleged against the character of petitioner. Petitioner has beaten her, mentally and physically harassed her. She admits that she has alleged serious allegations against the character of Shaila Lashkari in relation to the petitioner. Besides her bare words, she has no other evidence to show the alleged relationship between petitioner and Shaila. She has deposed that she has seen with her own eyes. Respondent has further deposed in the cross examination that the flat consisted of 2 bedroom, hall, kitchen. Total there were 7 members residing in the flat.
45. Considering these facts on record, admittedly, petitioner has not examined any witnesses but on the other hand there is a positive assertive allegation of the respondent that petitioner has illicit relations with Shaila Lashkare hence, in all probabilities, she would be on suspicion trying to make enquiries about the petitioner from his friends and colleagues. She would hence be calling his office to find out if the petitioner is moving around with Shaila Lashkare. Admittedly, -18-
Shaila is an old good friend of the petitioner. She has been visiting the house, attending the marriage of the sisters of the petitioner in the year 2004. Respondent is aware of it. She was married and has also been divorced. It is the case of the respondent that after the divorce of Shaila, there was a change in the behaviour of petitioner. The allegations made by her about eating in one plate, petitioner brushing his fingers in her hand, go for outings and restaurants are after the divorce of Shaila or even before is not been mentioned by the respondent. Secondly, if Shaila is in the house, then there are the parents of the petitioner also in the house, could it be said that he in there presence was behaving as alleged. It is not the case of the respondent that the parents of the petitioner have supported and encouraged the petitioner to have illicit relations with Shaila Lashkare. Respondent has not supported her vague and general contentions with any corroborative evidence. Respondent either out of suspicion or out of jealousy appears to have alleged such baseless and reckless allegations."
18. In our view, when it is not in dispute that the respondent used to come late at night, that in her presence the respondent and the said Shaila used to share food from the same plate and when the respondent himself admitted the fact that the said Shaila is his friend and on the basis of said circumstances if the appellant has doubted the relationship, it cannot be said that such doubt was without any basis. It is too much, in our view, to hold that out of jealousy perhaps such reckless allegations have been made. In such type of matters, there may not be any independent witnesses present but the appellant can be said to be the best witness because the wife is required to spend more time and is required to know details of the husband more minutely than anyone else in the family. The learned trial Judge has also found on appreciation of evidence that the allegation of the respondent that the parents wanted a ghar jamai is false. -19-
The learned trial Judge also found that lodging a complaint with Stree Adhar Kendra by the appellant does not mean that the respondent and his family members are defamed. The learned Judge also held that a woman look for various sources or women organisations to seek support and resolve their disputes. The learned trial judge in our view has erred in going in detail about the complaint filed under the Domestic Violence Act for coming to the conclusion that there is a contradiction in the allegations of the appellant in her complaint under the Act and her admission in the cross-examination. In para 58 of the order, the learned trial Judge found that there are allegations and counter allegations but the submission of the advocate for the respondent is corroborated by the allegations made by the appellant in her complaint under the Domestic Violence Act.
19. It is required to be noted that in spite of the aforesaid fact the appellant, in order to save her matrimonial home as well as for the benefit of their daughter has submitted that she is willing to go and reside with the husband and she is even ready to tolerate his relationship with other lady. It may not amount to an act of cruelty which can be attributed to the wife. In a given case, if the circumstances so warrant, wife may have some suspicion about the act and behaviour of her husband. In a given case, if the wife is having some suspicion, that itself may not amount to an act of cruelty as the act of cruelty depends upon the facts and circumstances of each and every case. In a given -20-
case if ill-treatment is meted out by in-laws and when the law has provided remedy, there is nothing wrong if a complaint to that effect is filed even against in-laws. That ground itself should not be taken as the basis for dissolving the marriage. As argued by the learned counsel for both sides, the basic dispute was in connection with the respondent's so-called relationship with Shaila but, as discussed earlier, from the facts of the case it is established that the respondent was having said lady as girl friend prior to marriage. According to the appellant in her presence she was subjected to humiliation. It cannot be said that her suspicion or doubt was without any basis worth the name and that only by way of jealousy that she was making such allegation. After marriage, no wife may tolerate the company of other lady friend in her husband's life and wife may have reservation about such friendship after the marriage. Normally, a husband and wife after the marriage is required to see that the peace at the matrimonial house prevails and one should try to remove the grievance of other side and if one is required to sacrifice something, in order to bring peace in the matrimonial home one should act accordingly. After the birth of a child, it is the bounden duty of the husband and wife to see that even if at the cost of some inconvenience they should try to adjust with the nature of each other and even try to surrender to the wishes of either side. Then only the matrimonial house can run smoothly with some jerks here or there.
20. From the evidence on record, we are of the opinion that this is not a fit case in which the marriage between the appellant and the respondent is required to be dissolved by passing a decree for divorce on the ground of alleged cruelty attributed to the appellant by the respondent. The order of the learned trial Judge is therefore required to be quashed and set aside and accordingly the same is set aside and the petition filed by the respondent before the Family Court stands dismissed.
21. The appeal is accordingly allowed with no order as to costs.
22. In view of the above order, no orders are required to be passed in the Civil Application. The same is accordingly disposed of. P. B. MAJMUDAR, J.
R.V. MORE, J.
Kalpana v. Surendranath (AIR 1985 All 253)
According to this case it has been observed that where a wife who refuses to prepare tea for the husband’s friends was declared by the court as cruelty to husband.
Smt. Kalpana Srivastava vs Surendra Nath Srivastava on 22 April, 1985
Equivalent citations: AIR 1985 All 253
Bench: O Saxena
O.P. Saxena, J.
1. This second appeal has been filed against by judgment and decree dt. 28th Mar. 1984 passed by the lower appellate Court confirming the judgment and decree passed by the trial Court whereby the petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act was allowed.
2. The parties were married on 10-12-1980 and they lived together for a month and a half. The petition was filed with the allegations that during her stay with the respondent the appellant humiliated the respondent by refusing to make tea for his friends. It was said that on the appellant's desire, the respondent got her admitted in a college for further studies. One day the appellant went on the pretext of going to college and did not come back. On 21st Jan., 1981 she lodged a report against the respondent and his relations for offences under Section 307/406/34 IPC and also under Section 4, Dowry Prohibition Act, 1961. Cases were registered against the respondent and his relations and warrants were issued against them. They had to obtain bail from the court. The police submitted final report in the case under Section 307/406/34 IPC, The other case also did not proceed. The appellant had started vomiting during her stay with the respondent and he got her medically examined. The doctor found that she was in a family way. Subsequently the appellant got rid of the pregnancy and deprived the respondent of a happy family. It was said that the respondent tried his best to persuade the appellant to leave her hostile and adamant attitude, but she was not prepared.
3. The petition was contested by the appellant on a plea of denial. She claimed that she used to prepare food, tea and refreshments for the family members and guests. Her grievance was that the greedy members of respondent's family pressed her for a sum of Rs. 30,000/- in cash and transfer of half of the immovable property of her father in favour of the respondent, but she refused to oblige. She also complained that the respondent had taken all her costly clothes and ornaments. She admitted that she filed Misc. Case No. 120 of 1970 against the respondent, but the latter was avoiding service. She also complained that the respondent did not give her love, affection and sympathy. It was said that the respondent tried to push the appellant in the ocean at Goa where the couple had gone for honeymoon, but she escaped. She referred to third degree methods used by the respondent and his relations. It was said that there was even attempt to commit her murder when the respondent and his relations tried to strangulate her. As she considered life unsafe at the house of the respondent she preferred to stay with her parents.
4. Both the courts below accepted the respondent's version. They held that cruelty under Section 13(1)(ia) of the Act has been proved.
5. I have heard the learned counsel for the appellant and have perused the judgment of the courts below.
6. The case of Dastane v. Dastane, AIR 1975 SC 1534, considered cruelty as referred to in Section 10(1)(b) of the Hindu Marriage Act prior to its amendment by Marriage Laws Amendment Act, 1976. 'Cruelty' referred to in Section 10(1)(b) of the Act had to be of a nature as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to the petitioner to live with the other party. The Amendment Act deleted the entire Section 10(1) of the Act and substituted it with the present sub-section, which provides that either party to the marriage may present a petition for judicial separation on any of the grounds specified in Sub-section (1) of Section 13. Clause (ia) was added to Section 13(1) of the Act and the ground provided now is that the other party "has after the solemnization of the marriage treated the petitioner with cruelty". No specified test is now tagged to 'cruelty' and it is cruelty simpliciter.
7. Where a wife refuses to prepare tea for the friends of the husband she not only hurts his ego but causes him humiliation before his friends who may not be tiring of lavishing praises on their wives.
8. Where a wife lodges false reports of non-bailable offences against the husband and his relations, who have to rush to the court to obtain bail in order to avoid arrest, she causes husband deep anguish and brings disgrace and ignominy to the husband and his relations, besides causing harassment.
9. Where a wife gets rid of a pregnancy without the consent of the husband, she causes him mental torture and deprives him of the pleasure and pride of being a father.
10. I am unable to accept that proved facts do not amount to cruelty under Section 13(1)(ia) of the Act. 'Cruelty' is not confined to physical cruelty, but includes mental cruelty. The matrimonial alliance is irretrievably broken where one of the spouses persistently causes mental torture, disgrace and harassment. The entire evidence on record and the totality of circumstances have to be considered for judging cruelty. Applying the test, I am satisfied that the courts below rightly held that 'cruelty' as referred to in Section 13(1)(ia) of the Act has been duly proved. There is no illegality in the findings recorded by the courts below. The findings are based on a reasonable assessment of the evidence on the record. It cannot be said that the findings are vitiated on account of misreading of pleadings or evidence or failure to, consider any material evidence or drawing wrong inferences from proved facts. There is no good ground for disturbing concurrent findings of courts below.
11. The second appeal is dismissed summarily.
Sunday, April 28, 2013
Meaning of irretrievable breakdown of a marriage.
The situation that exists when either or both spouses no longer are able or willing to live with each other, thereby destroying their Husband and Wife relationship with no hope of resumption of spousal duties.
The irretrievable breakdown of a marriage provides the ground for a no-fault divorce in many jurisdictions.
Is the ground for irretrievable breakdown of a marriage is valid in India for Hindus?
“In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohli's case (supra):
Sanghamitra Ghosh vs Kajal Kumar Ghosh on 20 November, 2006
Author: D Bhandari
Bench: G Mathur, D Bhandari
Transfer Petition (civil) 228 of 2004
Kajal Kumar Ghosh
DATE OF JUDGMENT: 20/11/2006
G.P. MATHUR & DALVEER BHANDARI
J U D G M E N T
TP (CRL.) NOS.105 & 171 OF 2004, TP (CIVIL) NO.727 OF 2004 AND TP (CIVIL) NO.168 OF 2006.
Dalveer Bhandari, J.
The marriage of the petitioner was solemnized on 8.11.1999 with the respondent as per Hindu rites and customs and was duly registered with the Registrar of Marriage. The parties have closely known each other before marriage and the marriage was solemnized according to the wishes of the petitioner and the respondent.
A male child was born out of the wedlock but, unfortunately, the parties did not have a smooth marital life. According to the allegations of the petitioner, Sanghamitra Ghosh, she was physically and mentally tortured by the respondent and his parents. According to her, the degree of torture increased day by day and eventually on 14.1.2001 she was driven out of the marital home along with her minor child. Thereafter, the petitioner moved to her parents and started with them from 15.1.2001. The respondent never cared to inquire about the petitioner and her child and has never sent any money either for the maintenance of the petitioner or her child.
In these circumstances, she was forced to file a criminal complaint on 4.8.2002 under Section 498A of the Indian Penal Code read with Sections 3 & 4 of Dowry Prohibition Act.
According to the version of the petitioner, she was totally dependant on her father, who himself was very old and was suffering from cancer and a considerable amount had to be spent for his treatment. In these circumstances, the petitioner became an additional burden on her parents. In order to maintain herself and her child, she took up a petty job in the ICICI bank on a meagre salary. The petitioner now has been transferred to Bangalore, as a result of which it had become extremely difficult for her to attend the court proceedings in West Bengal. It is very expensive and time consuming. In these circumstances, the petitioner had filed a transfer petition praying that matrimonial suit no.437 of 2002 titled as "Kajal Kumar Ghosh versus Sanghamitra Ghosh" filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and pending in the court of District Judge, Barasat be transferred to the court of competent jurisdiction at Bangalore.
This Court on 26.3.2004 issued a show-cause notice on the transfer petition. Reply to the transfer petition was filed by the respondent. The datewise sequence of events given by the respondent are contrary to what had been averred by the petitioner. According to the respondent, the petitioner was not driven out of the matrimonial home. In fact, she had walked out of the matrimonial home. The respondent further submitted that their marriage broke down due to the basic difference in their social status, educational and cultural background, lack of tolerance and inability to adopt and adjust to a life of a middle class family.
During the pendency of this petition, the parties have explored the possibility of an amicable settlement. The matter was adjourned from time to time to give the parties adequate time to mutually and amicably settle their differences. The parties, despite persuasion of the Court, have not been able to sort out their differences and decided to live separately. According to the parties, their marriage has been irretrievably broken down and reconciliation is out of question.
Learned counsel for the parties have prayed that in the peculiar facts and circumstances of this case, this Court may grant a decree of divorce by mutual consent. On 15.9.2006, the parties have jointly filed a petition where they have spelt out the Terms of Compromise. The Terms of Compromise read as under: "1. Shri Kajal Ghosh/husband agrees to pay a sum of Rs.10 lacs (Rupees ten lacs) as full and final settlement to his wife Smt. Sanghamitra Ghosh. This amount shall be paid by Shri Kajal Kumar Ghosh in the Court by way of Demand Draft in favour of the petitioner.
2. Both the parties further agree to let the mother/Smt. Sanghamitra Ghosh have the permanent custody of the minor son.
3. However, the father, Kajal Ghosh will be entitled to have visitation rights to the child at the residence of the petitioner at a mutually convenient date with prior permission.
4. Both the parties also agree to forthwith withdraw/close all cases filed against each other and pending before the various courts in Kolkata and Bangalore. These cases are:
(i) Reference Case No.210/2002
pending before the learned
SDM Court, Burrackpore,
(ii) MC No.713/2004 pending
before the Principal Family
(iii) Reference Case No.M-313 of
2003 pending before the
learned 5th Judicial
Burrackpore, West Bengal.
(iv) Matrimonial Suit
No.437/2002 pending before
the District Judge, Barasat,
(v) Guardianship Case
No.66/2004 pending before
the District Judge, Barasat,
5. Both the parties undertake that they shall adhere to the terms of
compromise/settlement and that they shall not litigate in future and have no claim against each other whatsoever in future."
It may be relevant to mention that on 16.10.2006, respondent Kajal Kumar Ghosh had filed additional affidavit in which detailed particulars of the matters pending inter se between the parties have been enumerated. On the same day, the parties had also filed comprehensive terms of their compromise. The said terms are set out as under:
"Both the parties viz. the petitioner and the respondent have voluntarily and with their free will, arrived at a compromise/settlement, which has been reduced into writing and which reads as under:
1. Shri Kajal Ghosh/husband agrees to pay a sum of Rs.10 lacs (Rupees ten lacs) as full and final settlement to his wife, Smt. Sanghamitra Ghosh. This amount shall be paid by Shri Kajal Ghosh in Court by way of the following Demand Drafts drawn on Allahabad Bank payable in her favour at Bangalore:-
a) DD No.634519 dated 11.9.2006 for Rs.2,50,000/-
b) DD No.634520 dated 11.9.2006 for Rs.2,50,000/-.
c) DD No.634521 dated 11.9.2006 for Rs.2,50,000/-
d) DD No.634522 dated 11.9.2006 for Rs.2,50,000/-.
2. Both the parties further agree to let the mother/Sanghamitra Ghosh have the permanent custody of the minor son.
3. However, the father/Kajal Ghosh will be entitled to have visitation rights to the child at the residence of his wife at a mutually convenient date with prior permission.
4. The following cases are pending between the parties before the various courts. These cases are:
i) REFERENCE CASE NO.210/2002
pending before the Learned SDM
Court, Burrackpore, West Bengal
filed by the wife/Sanghamitra under Section 498A IPC read with Sections 3 and 4 of the Dowry Prohibition
TP (CRIMINAL) NO.171/2004 which has been filed by the wife before this Hon'ble Court arises out of these proceedings.
ii) MC NO.713/2004 pending before the Principal Family Judge,
Bangalore filed by the wife under Section 13(1)(a) and (b) of the Hindu Marriage Act for grant of divorce.
TP (CIVIL) NO.727/2004 which has been filed by the husband before this Hon'ble Court arises out of these proceedings.
iii) REFERENCE CASE NO.M-313 OF
2003 pending before the Learned 5th Judicial Magistrate Court,
Burrackpore, West Bengal filed by wife under Section 125 CrPC for
TP (CRIMINAL) NO.105/2004 which has been filed by the wife before this Hon'ble Court arises out of these proceedings.
iv) MATRIMONIAL SUIT NO.437/2002
pending before the District Judge, Barasat, West Bengal filed by the husband under Section 9 of the
Hindu Marriage Act for restitution of conjugal rights.
TP (CIVIL) NO.228/2004 which has been filed by the husband before this Court arises out of these proceedings.
v) GUARDIANSHIP CASE NO.66/2004
pending before the District Judge, Barasat, West Bengal filed by the husband under Section 25 of the
Guardians and Wards Act for
TP (CIVIL) NO.168/2006 which has been filed by the wife before this Court arises out of these proceedings.
5. Both the parties humbly request this Court in exercise of its powers to do complete justice to the parties,
quash/close all the above pending proceedings in view of this settlement as the parties do not intend pursuing the litigation any further.
6. Both the parties humbly request that all the transfer petitions pending in this Court (as mentioned earlier in para 4) to be dismissed as infructuous.
7. Both the parties submit that their marriage has broken down irretrievably and that there is no possibility of the parties living together. In these circumstances, both parties would humbly request this Court in exercise of its powers to grant a decree of divorce by mutual consent.
8. Both the parties undertake that they shall adhere to the terms of
compromise/settlement and that they shall not litigate any further and will have no claim against each other hereafter."
Learned counsel appearing for the parties have prayed that in the peculiar facts and circumstances and in the interest of justice, this Court, in exercise of its jurisdiction under Article 142 of the Constitution, may grant a decree of divorce by mutual consent.
Learned counsel for the parties have also drawn the attention of this Court to the decision of Harpit Singh Anand v. State of West Bengal reported in (2004) 10 SCC 505. In this case, in almost similar circumstances, this Court in order to put a quietus to all litigations between the parties and not to leave any room for future litigation and on the request of the said parties, exercising the power vested under Article 142 of the Constitution, dissolved the marriage and granted a decree of divorce by mutual consent.
In the case of Kanchan Devi v. Promod Kumar Mittan & Another reported in (1996) 8 SCC 90, where the marriage of the parties was irretrievably broken down, this Court exercised the power under Article 142 of the Constitution of India and passed the following order: "6. In view of the peculiar facts and circumstances of the case and being satisfied that the marriage between the appellant and the respondent has irretrievably broken down and that there is no possibility of reconciliation, we in exercise of our powers under Article 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce. All pending cases arising out of the matrimonial proceedings and the maintenance
proceedings under Section 125 Cr. PC pending between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled all those disputes in terms of the settlement. This appeal is disposed of in the above terms."
In the case of Ashok Hurra v. Rupa Bipin Zaveri etc. reported in (1997) 4 SCC 226, this Court while dealing with a matrimonial matter quoted few excerpts from the Seventy-first Report of the Law Commission of India on the Hindu Marriage Act, 1955 "Irretrievable Breakdown of Marriage" dated 7.4.1978. We deem it appropriate to reproduce some excerpts from the said report as under:
"Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce.
* * *
Proof of such a breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage.
* * * The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.
* * * Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage --"breakdown"- and if it continues for a fairly long period, it would indicate destruction of the essence of marriage "irretrievable breakdown"."
In order to do complete justice in the matrimonial matters, this Court has been less hesitant in exercising its extra-ordinary jurisdiction under Article 142 of the Constitution. To illustrate this fact, reference of some decided matrimonial cases is given hereinbelow.
In Swati Verma v. Rajan Verma & Others reported in (2004) 1 SCC 123, this Court came to a definite conclusion that the marriage between the parties has irretrievably broken down and with a view to restore good relationship and to put quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, this Court granted a decree of divorce by mutual consent while exercising its power under Article 142 of the Constitution.
This Court while exercising its unique power vested under Article 142 of the Constitution in a transfer petition in the case of Madhuri Mehta v. Meet Verma reported in (1997) 11 SCC 81, observed as under: "During the course of hearing of this transfer petition, parties have jointly made an application under Section 13-B of the Hindu Marriage Act, 1955 before us praying for dissolution of their marriage by mutual consent and in the body of the application a provision has been made for their only child. Though the child has been conferred the right to visit his father as and when he likes, there is no corresponding right with the father to visit his child. That state of affairs would be violating the rights of the child and the father. The husband will, thus, have a right of visitation to see his child but after giving due intimation to the mother. The parties have been estranged and have kept apart since January 1996. Earlier to the present status, the parties had their earlier marriages broken or disrupted. The husband lost his wife in a vehicular accident and the wife had divorced her earlier husband. In this background their differences can well be appreciated when both of them are highly educated doctors. Keeping that in view, we entertain this application and grant them divorce by mutual consent in exercise of our powers under Article 142 of the Constitution, for which there is ample authority reflective from past decisions of this Court. The divorce petition pending in the Family Court at Patna, shall stand disposed of automatically by this order.
The transfer petition and the divorce petitions are disposed of accordingly."
In another transfer petition in the matrimonial matter, in Anita Sabharwal v. Anil Sabharwal reported in (1997) 11 SCC 490, this Court was of the view that there was no hope for the parties to live together and passed the following order: "A divorce petition being HMA Case No.863 of 1994 preferred by the respondent- husband was pending in the Court of Shri A.K. Pathak, Additional District Judge, Delhi. The instant transfer petition was moved by the petitioner-wife seeking transfer of the said case to the Family Court, Mumbai. During the pendency of the transfer petition, parties as well as their counsel had on 9.9.1996 put on record a compromise deed wherein they have agreed to get divorce by mutual consent. Strictly speaking, the preconditions of such claim have not been laid inasmuch as a petition to that effect has not been filed under Section 13-B of the Hindu Marriage Act, 1955 (the Act) before the first matrimonial court, and that the statutory period of 6 months has not even commenced. Be that as it may, it stands established beyond doubt on our summoning of the original file HMA Case No.863 of 1994 that the parties were married about 14 years ago, have spent the prime of their life in acrimony and litigating and that it is time that their mutuality bears some fruit in putting them apart. Therefore, we take the divorce petition HMA Case No.863 of 1994 on our own file and import thereto the compromise deed put on record by the parties jointly. In terms therewith, a sum of Rs.7 lakhs stands paid to the wife by means of 3 separate bank drafts of Rs.2 lakhs, Rs.2 lakhs and Rs.3 lakhs. Recurring provision has been made therein for their children's education and visitation rights of the father. We have questioned the parties and they are eager to dissolve the matrimonial tie so that they can rearrange their lives well in time. We, therefore, in the spirit of Section 13-B of the Act, and in view of the fact that all hopes to unite them together have gone, hereby grant to the parties divorce by a decree of dissolution by mutual consent to end their prolonged unhappiness. Ordered accordingly. The transfer petition stands disposed of."
We have heard learned counsel for the parties. This Court adjourned the proceedings from time to time to ensure that the parties may reconcile the differences and live together again, but this has not happened. It is indeed the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained. But as aptly observed by this Court, in a recent decision in Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC 558, that when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist.
In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohli's case (supra).
In view of peculiar facts and circumstances of this case, we consider it appropriate to exercise the jurisdiction of this Court under Article 142 of the Constitution.
In order to ensure that the parties may live peacefully in future, it has become imperative that all the cases pending between the parties are directed to be disposed of. According to our considered view, unless all the pending cases are disposed of and we put a quietus to litigation between the parties, it is unlikely that they would live happily and peacefully in future. In our view, this will not only help the parties, but it would be conducive in the interest of the minor son of the parties.
On consideration of the totality of the facts and circumstances of the case, we deem it appropriate to pass the order in the following terms: a) The parties are directed to strictly adhere to the Terms of Compromise filed before this Court and also the orders and directions passed by this Court;
b) We direct that the cases pending between the parties, as enumerated in the preceding paragraphs, are disposed of in view of the settlement between the parties; and
c) All pending cases arising out of the matrimonial proceedings including the case of restitution of conjugal rights and guardianship case between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled all those disputes in terms of the settlement.
These transfer petitions are accordingly disposed of. In the facts and circumstances of the case, we direct the parties to bear their own costs.