498a + ARRST & publishing allegations + writing to superiors IS CRUELTY. Divorce Granted to husband. Allahabad HC
excerpts of SIMPLE ACTIONS by ablaa naari
“….On 27th July, 2007 itself a first information report was lodged by the wife against the husband, his parents, his sister and brother-in-law under Sections 498A, 323, 506 of I.P.C. and Section 3/4 of the Dowry Prohibition Act on which Case Crime No.601 of 2007 was registered. The respondent was arrested by the police and remained in jail for 12 days …… A news publication was published on 28th July, 2007 in the Hindi Daily Newspapers “Amar Ujala” and “Dainik Jagaran” mentioning about the arrest of the respondent on the allegation of demand of dowry. The appellant also gave an interview to the news channel “Sahara Samay” along with her parents making allegation on respondent and his entire family. The wife also wrote a letter to the Senior Superintendent of Police, Haridwar dated 12th August, 2007 informing lodging of first information report and making allegations of demand of dowry against the respondent and his family members. ….
“… complaint was also sent by the appellant to the Finance Secretary, Government of Uttrakhand informing about the F.I.R. … appellant informed her father on mobile that the respondent and family members are making plan to kill the appellant after which father of the appellant came with the police and took away the appellant from her in-laws house to their house at Allahpur. The complaint sent to the Finance Secretary was also sent to all administrative officers of Uttrakhand and Uttar Pradesh. …………………….”
The court appreciates the facts and adds “…here cannot be any denial to the fact that every person can take recourse of law if any offence is committed to him. Right to lodge a first information report or to take such legal action as permissible under the law cannot be denied. However, in facts of the present case we have to examine as to whether action taken by the wife and acts done by her within less than six months of the marriage are the action which gives reasonable apprehension in the mind of husband that it is not safe to live with wife any more. “
“…However, it was admitted to the wife also in her cross examination that she filed various complaints against the husband before the Senior Superintendent of Police, Haridwar, Finance Secretary, Uttrakhand and Director (Treasury). The wife was confronted with the said letters in her cross examination and she admitted sending of those complaints. The wife in her written statement as well as statement has continued with leveling allegations against the husband and her family members…..”
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 09.05.2013.
Delivered on 31.05.2013.
Case :- FIRST APPEAL No. – 175 of 2010
Appellant :- Smt. Ruchita Srivastava
Respondent :- Vivek Swaroop
Counsel for Appellant :- Pankaj Lal,A.K. Gupta,A.P. Paul,Ajay P. Paul,B.B. Paul
Counsel for Respondent :- Anoop Trivedi,A.K.Gupta,Rajesh Kumar Sachan,S.K.Singh
Hon’ble Ashok Bhushan,J.
Hon’ble Surya Prakash Kesarwani,J.
(Delivered by Hon’ble Ashok Bhushan, J.)
This appeal has been filed by Smt. Ruchita Srivastava, the appellant, against the judgment and order of Principal Judge, Family Court, Allahabad dated 30th March, 2010 by which the Principal Judge, Family Court has dismissed the petition filed by the appellant under Section 9 of the Hindu Marriages Act, 1955 and decreed the petition of the husband, the respondent, under Section 13 of the Hindu Marriages Act, 1955.
Brief facts giving rise to this appeal are; the appellant was married with respondent on 12th February, 2007 at Allahabad. At the time of marriage, the respondent was posted as Senior Treasury Officer, Haridwar, State of Uttrakhand. Both, husband and wife are resident of district Allahabad. After the marriage, the appellant lived at Mumford Ganj house of the parents of the respondent. the respondent used to come from Haridwar and stay with wife at Mumford Ganj, Allahabad. On 5th May, 2007, the respondent took the appellant to Haridwar who stayed there at the official residence of the respondent. On 9th May, 2007, the respondent got the appellant examined by Dr. Deepa who advised to consult a psychologist. On 31st May, 2007, the respondent took the wife to Allahabad. On 6th July, 2007 the appellant came to Haridwar along with her parents and continued at Haridwar to live with her husband. On 6th July, 2007 there was a scuffle between the parents of the appellant and the respondent. The husband alleging that he suffered teeth bite by the mother of the appellant, got him medically examined on 7th July, 2007 and is said to have sent a complaint to Kotwali, Haridwar. On 13th July, 2007, the wife filed Petition No.794 of 2007 before the Principal Judge, Family Court, Allahabad for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter referred to as the Act). On 23rd July, 2007, the husband received a call on his mobile from his father that father of the appellant has abused him and threatened to implicate in the dowry case. On 23rd July, 2007 itself the respondent claims to have submitted an application to Station House Officer, Haridwar about the threatening. On 26th July, 2007, the husband took the wife to Allahabad at his Mumford Ganj residence. On 26th July, 2007 itself the father, mother and brother of the appellant came at the Mumford Ganj residence and threatened the respondent and his family members. On 27th July, 2007 the husband sent an application to the Senior Superintendent of Police, Allahabad and Police Station Colonel Ganj, Allahabad by registered post narrating the incident dated 26th July, 2007. In the evening of 27th July, 2007, the parents of appellant came along with police of police station Colonel Ganj to the Mumford Ganj residence of the husband and the appellant was taken to her parents house at Allahpur. On 27th July, 2007 itself a first information report was lodged by the wife against the husband, his parents, his sister and brother-in-law under Sections 498A, 323, 506 of I.P.C. and Section 3/4 of the Dowry Prohibition Act on which Case Crime No.601 of 2007 was registered. The respondent was arrested by the police and remained in jail for 12 days till his bail application was allowed by the Sessions Judge, Allahabad on 8th of August, 2007. A news publication was published on 28th July, 2007 in the Hindi Daily Newspapers “Amar Ujala” and “Dainik Jagaran” mentioning about the arrest of the respondent on the allegation of demand of dowry. The appellant also gave an interview to the news channel “Sahara Samay” along with her parents making allegation on respondent and his entire family. The wife also wrote a letter to the Senior Superintendent of Police, Haridwar dated 12th August, 2007 informing lodging of first information report and making allegations of demand of dowry against the respondent and his family members. The complaint also alleged that on 7th July, 2007 she and her parents were misbehaved by the respondent. It was alleged that on 26th July, 2007 demand of dowry of Rs.8 lacs was made. The complaint was also sent by the appellant to the Finance Secretary, Government of Uttrakhand informing about the F.I.R. It was further mentioned in the complaint that on 27th July, 2007 appellant informed her father on mobile that the respondent and family members are making plan to kill the appellant after which father of the appellant came with the police and took away the appellant from her in-laws house to their house at Allahpur. The complaint sent to the Finance Secretary was also sent to all administrative officers of Uttrakhand and Uttar Pradesh. On 4th October, 2007 the respondent filed a petition under Section 13 of the Act for divorce at Family Court, Haridwar against the appellant. On 21st January, 2008, the Family Court, Haridwar passed an ex-parte decree in favour of the respondent which on the application of the appellant was set-aside. By an order passed by the Apex Court in Transfer Petition No.598 of 2008, the Petition No.302 of 2007 was transferred from Family Court, Haridwar to Family Court, Allahabad. The said petition was tagged with petition under Section 9 of the Act filed by the appellang being case No.794 of 2007. After one year of lodging of the first information report, the appellant again filed a complaint against the respondent and his family members under the Domestic Violence Act before the Court of Magistrate at Allahabad in which the respondent and family members were summoned. Before the Principal Judge, Family Court, the wife examined herself in support of her case whereas the husband appeared in support of his case. No other witness was examined by either of the parties before the Principal Judge, Family Court. Both the parties filed documentary evidence including the first information report, bail orders, several letters and news items. The respondent also filed pass book of the saving bank account opened in the name of his wife at Union Bank of India, Mumfordganj, cash certificate of 48,000/- in the name of Ruchita Srivastava and Kusum Srivastava, deposit of Rs.48,000/- in the ICICI Bank in the name of Ruchita Srivastava and Kusum Srivastava, Public Provident Fund pass book in the name of Ruchita Srivastava dated 4th June, 2007 showing deposit of Rs.70,000/-. The Principal Judge, Family Court vide its judgment and order held that the marriage between the parties has been broken and there is no possibility of both living together. The Principal Judge, Family Court also recorded finding that lodging of first information report by the appellant against the respondent under Section 498A of I.P.C. and arrest of the respondent therein and also publishing allegations against her husband and his family members in the newspapers and media are act of mental cruelty. The Principal Judge, Family Court dismissed the petition filed by the appellant under Section 9 of the Act and decreed the petition filed by the husband for divorce against which judgment this appeal has been filed.
We have heard Sri Shashi Nandan, Senior Advocate, assisted by Sri Pankaj Lal and Sri S.K. Srivastava for the appellant and Sri Anoop Trivedi and Sri A.K. Gupta for the respondent.
Learned counsel for the appellant submitted that mere filing of criminal case does not amount to cruelty, it is a legal right given to a women. The police has already filed charge-sheet and the trial is going on. He submits that the family court has not considered the testimony of both the parties. In the cross examination the husband has not disclosed about any cruelty committed by the wife. The Court has not passed any decree of alimony or for return of jewelry. The appellant was not employed but now has been registered as an Advocate.
Learned counsel for the respondent, refuting the submission of the learned counsel for the appellant, contended that lodging of first information report and getting the husband arrested and thereafter giving T.V. interview are acts of mental cruelty caused by the wife which has rightly been found to be sufficient for grant of decree of divorce. He submitted that wife even opposed the bail application of the husband in the Sessions Court, Allahabad. The husband had to remain in jail for 12 days and he was suspended from his service and for about four months he was under suspension when authorities after coming to know full facts have revoked the suspension. The old parents of the husband had to surrender in the Court and were granted bail by Special Chief Judicial Magistrate. The wife sent complaint to various authorities in the State of Uttrakhand as well as State of U.P. making allegations against the husband and his family members with intent to malign the image of the husband and to cause mental cruelty. The complaint under the Domestic Violence Act has been instituted after one year of the lodging of the first information report in which husband has also been summoned. The wife did not claim any alimony before the Court.
We have considered the submissions of learned counsel for the parties and perused the record.
The decree of divorce has been granted by the Principal Judge, Family Court substantially on following two grounds:-
(i)The wife has treated the husband with cruelty.
(ii)The marriage between the parties have been irretrievably broken.
The principal submission of the appellant’s counsel is that there was no sufficient material to prove any cruelty on the part of wife. It is further submitted that lodging of first information report is a right of a women and when the first information report accounts for true events, no benefit can be taken by the husband of the aforesaid fact.
Before we proceed to examine the evidence in the present case, it is necessary to look into the concept of mental cruelty.
The Apex Court had occasion to consider the mental cruelty in context of Hindu Marriages Act in Samar Ghosh Vs. Jaya Ghosh reported in (2007)4 SCC 511. The Apex Court had taken into consideration all the earlier judgments of the Apex Court and other courts and elaborately discussed the concept of mental cruelty. It is relevant to note the paragraph Nos. 39, 40, 44, 46, 47, 48, 49, 50 and 101 of the judgment which throws considerable light on the controversy which has arisen in the present case.
“39.Shorter Oxford Dictionary defines ‘cruelty’ as ‘the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’.
40. The term “mental cruelty” has been defined in the Black’s Law Dictionary [8th Edition, 2004] as under:
“Mental Cruelty – As a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”
44. This Court has had an occasion to examine in detail the position of mental cruelty in N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para 30 observed as under :-
“The enquiry therefore has to be whether the conduct charges 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.”
46. In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.
47. In Rajani v. Subramonian AIR 1990 Ker. 1 the Court aptly observed that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of the cultural heritage and traditions of our society.
48. Again, this Court had an occasion to examine in great detail the concept of mental cruelty. In the case of V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, the Court observed, in para 16 at page 347, as under:
“16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
49. This Court aptly observed in Chetan Dass v. Kamla Devi reported in (2001) 4 SCC 250, para 14 at pp.258-259, as under:
“14.Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.”
50. In Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73, the Court stated as under:
“Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.”
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”
The Apex Court in the case of Satish Sitole Vs. Ganga (SMT), reported in (2008) 7 SCC 734, has held that when there are acrimonious allegations against each other and attempt to reconciliation has failed, continuance of such marriage itself would amount to cruelty. Following was laid down by the Apex Court in paragraphs 7, 10 and 12 which are as under:-
“7. Since despite the attempts at reconciliation the Gordian Knot could not be untied and clearly the marriage has broken down irretrievably, it was submitted on behalf of both the parties that it would perhaps be to the best interest of the parties to have the marriage tie dissolved with adequate provision by way of permanent alimony for the respondent.
10. The power vested in this Court under Article 142 of the Constitution was also exercised in –
i) Anjana Kishore vs. Puneet Kishore, (2002) 10 SCC 194;
(ii) Swati Verma vs. Rajan Verma and ors., (2004) 1 SCC 123; and
(iii) Durga Prasanna Tripathy vs. Arundhati Tripathy, (2005) 7 SCC 352.
Of the three aforesaid cases, in the first two cases orders passed were on Transfer Petitions where ultimately the parties agreed to divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. Resorting to the powers reserved to this Court under Article 142, decrees of divorce were granted to put a quietus to all litigations pending between the parties on the ground that their marriages had broken down irretrievably. In the last of the three cases, while holding that the marriage had broken down irretrievably, this Court affirmed the decree of divorce passed by the Family Court, but directed payment of alimony to the extent of Rs.1,50,000.
12. In the said circumstances, following the decision of this Court in Romesh Chander’s case (supra) we also are of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved, subject to the appellant paying to the respondent a sum of Rupees Two lakhs by way of permanent alimony. In addition, the appellant shall also pay the costs of this appeal to the respondent, assessed at Rs.25,000/-. The appeal is disposed of accordingly.”
To the similar effect there is another judgment of the Apex Court in the case of Durga Prasanna Tripathy vs. Arundhati Tripathy reported in AIR 2005 SC 3297. Paragraph 29 and 30 of the said judgment are to the following effect:-
“29. The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/
30. Before parting with this case, we think it necessary to say the following: Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs. 50,000/- towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs. 1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent-Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent.”
In a recent judgment in the case of K. Srinivas Rao vs. D.A. Deepa in Civil Appeal No.1794 of 2013 decided on 22.2.2013, the Apex Court had occasion to consider matrimonial dispute between the husband and wifes specifically in context of mental cruelty. Elaborating the concept of cruelty following was laid down in paragraphs 10, 11, 13 and 14 of the said judgment:-
“10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term ”cruelty’. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.
12. In V. Bhagat v. D. Bhagat in the divorce petition filed by the husband the wife filed written statement stating that the husband was suffering from mental hallucination, that his was a morbid mind for which he needs expert psychiatric treatment and that he was suffering from ”paranoid disorder’. In cross-examination her counsel put several questions to the husband suggesting that several members of his family including his grandfather were lunatics. This court held that these assertions cannot but constitute mental cruelty of such a nature that the husband cannot be asked to live with the wife thereafter. Such pleadings and questions it was held, are bound to cause immense mental pain and anguish to the husband. In Vijaykumar Bhate disgusting accusations of unchastity and indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations 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 to live with her husband. In Naveen Kohli the respondent-wife got an advertisement issued in a national newspaper that her husband was her employee. She got another news item issued cautioning his business associates to avoid dealing with him. This was treated as causing mental cruelty to the husband.
13. In Naveen Kohli the wife had filed several complaints and cases against the husband. This Court viewed her conduct as a conduct causing mental cruelty and observed that the finding of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable.
14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.”
In the aforesaid case the wife had filed complaint under Section 498A of I.P.C. before the Metropolitan Magistrate, Hyderabad. The Family Court dismissed the petition for restitution of conjugal rights and granted decree of divorce holding that by filing complaints against the husband, the wife caused mental cruelty. The High Court set-aside the judgment and decree of the Family Court against which husband filed the appeal. The appeal was allowed by the Apex Court making following observations in paragraphs 23, 25, 26, 27 and 28 which are as under:-
“23. Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant-husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent-wife filed a protest petition. The trial court took cognizance of the case against the appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the respondent-wife filed criminal appeal in the High Court challenging the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant-husband for the offence under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent-wife filed criminal appeal in the High Court challenging the said acquittal. During this period respondent-wife and members of her family have also filed complaints in the High Court complaining about the appellant-husband so that he would be removed from the job. The conduct of the respondent- wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant-husband, in filing appeal questioning the acquittal of the appellant-husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant- husband.
25. It is also to be noted that the appellant-husband and the respondent- wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, if we refuse to sever the tie, it may lead to mental cruelty.
26. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/
27. In V. Bhagat this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty this Court observed that irretrievable breakdown of marriage is not a ground by itself, but, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted the said circumstance can certainly be borne in mind. In Naveen Kohli, where husband and wife had been living separately for more than 10 years and a large number of criminal proceedings had been initiated by the wife against the husband, this Court observed that the marriage had been wrecked beyond the hope of salvage and 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. It is important to note that in this case this Court made a recommendation to the Union of India that the Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.
28. In the ultimate analysis, we hold that the respondent-wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant-husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent-wife.”
The Apex Court in ultimate analysis held that the wife has caused by her conduct mental cruelty to the husband and the marriage has irretrievably broken down. The law laid down by the Apex Court in the said case is fully applicable and supports the contention of the learned counsel for the respondent.
Now coming to the facts of the present case and the evidence brought on the record. There is no dispute between the parties that first information report was lodged by the wife on 27th July, 2007 against the husband in which husband was arrested and sent to jail. The wife also gave interview before the television news channel “Sahara Samay” where the allegations were made against the husband and his family members. Filing of various letters and complaint by the appellant to Senior Superintendent of Police, Haridwar, Finance Secretary, Uttrakhand and other authorities, which are on the record have not been denied by the appellant and have been taken note by the Principal Judge, Family Court clearly proves that wife persisted with allegations against her husband of demand of dowry. In the written statement filed by the wife, the wife has made allegation of demand of dowry against the husband and his family members. It has further been pleaded in the written statement that she has threat of her life if she lives with in-laws. The allegations have been made against the family members of the husband that they have threatened to kill her. It has further been alleged that on 27th July, 2007 amount of Rs.8 lacs as dowry was demanded for and she was beaten. The copy of the affidavit filed by the wife opposing the bail application of the husband is on the record in which wife has opposed grant of bail to the husband. Even after one year of lodging of first information report another complaint under the Domestic Violence Act has been filed by the wife in the Court of Special Chief Judicial Magistrate, Allahabad which is pending consideration.
There cannot be any denial to the fact that every person can take recourse of law if any offence is committed to him. Right to lodge a first information report or to take such legal action as permissible under the law cannot be denied. However, in facts of the present case we have to examine as to whether action taken by the wife and acts done by her within less than six months of the marriage are the action which gives reasonable apprehension in the mind of husband that it is not safe to live with wife any more. It is not necessary for us in this appeal to enter into or record any finding as to whether there was demand of Rs.8 lacs on 26th July, 2007 as dowry by the respondent or his family members from the wife or not but it is relevant to note that apart from allegations made by the wife there is nothing more to support the said allegation. However, it was admitted to the wife also in her cross examination that she filed various complaints against the husband before the Senior Superintendent of Police, Haridwar, Finance Secretary, Uttrakhand and Director (Treasury). The wife was confronted with the said letters in her cross examination and she admitted sending of those complaints. The wife in her written statement as well as statement has continued with leveling allegations against the husband and her family members. It was alleged that she was mentally tortured and also beaten. It was stated in her statement that dowry was demanded and she was beaten on 27th July, 2007 when she rang her father informing that she will be killed then the father of the appellant came with the police and took away her from the in-laws house. She in her cross examination has stated that she has sent complaints to the administrative authorities of Uttrakhand as she was fearing for her life from Vivek, the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/
From the materials and evidence including the oral evidence brought on the record, the respondent has successfully proved that he was treated with cruelty within the meaning of Hindu Marriage Act, 1955. The findings recorded by the Principal Judge, Family Court that husband was treated with cruelty suffer from no error and are fully supported by the evidence on the record.
It is relevant to note that efforts for reconciliation between the parties were made which failed. The Principal Judge, Family Court also made effort on 6th April, 2009 which conciliation failed. On 23rd April, 2012 in this appeal also the Court has directed the parties to appear on 11th May, 2012 before the Mediation and Conciliation Centre, High Court. The Mediation and Conciliation Centre has submitted a report on 11th May, 2012 that although both the parties have appeared but not willing to reconciliation. After 27th July, 2007 both the parties are living separately. In the case of K. Srinivas Rao vs. D.A. Deepa (supra) the Apex Court has held that the fact that marriage has irretrievably broken is a relevant consideration for deciding matrimonial cases. We are satisfied that marriage having irretrievable broken between the parties and husband having dealt with cruelty, the decree for grant of divorce as well as the order of the Principal Judge, Family Court rejecting the application of the wife under Section 9 of the Act are to be maintained.
One of the submissions, which is pressed by the learned counsel for the appellant is that the Principal Judge, Family Court has not adverted to the question of grant of any permanent alimony and maintenance to the wife. The wife has been granted maintenance in proceeding under Section 125 of Cr.P.C. The maintenance amount was also enhanced by this Court in this appeal to Rs.5,000/- per month. Learned counsel for the respondent has submitted that after the marriage, the respondent has invested certain amount in the name of his wife including investing of Rs.70,000/- in Public Provident Fund, depositing of Rs.48,000/- in the Union Bank of India and also depositing of Rs.25,000/- in the ICICI Bank. The respondent is working as Senior Treasury Officer. The parties could live as married couple only from 12th February, 2007 to 27th July, 2007 for a brief period only. Although it is stated before us that appellant has been registered as an Advocate but the learned counsel for the appellant submitted that wife has no income and she is not able to maintain herself.
In facts of the present case, we are of the view that ends of justice be served in directing the respondent to make payment of Rs.7.5 lacs to the appellant by a demand draft in the name of the appellant towards permanent alimony which can be invested by the appellant in a interest earning deposit in a nationalised bank to sustain herself.
We direct the respondent-husband to make payment of Rs.7.5 lacs by demand draft to the appellant within two months from today or to deposit the amount of Rs.7.5 lacs in the bank account of the appellant within two months.
In result, the appeal is partly allowed to the extent of grant of permanent alimony of Rs.7.5 lacs. Rest of the prayers made in the appeal are refused. The order of the Principal Judge, Family Court dated 30th March, 2010 decreeing the divorce petition filed by the respondent under Section 13 of the Hindu Marriage Act, 1955 and rejecting the application of the appellant filed under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights is affirmed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/
Parties shall bear their own costs.
Order Date :- 31.05.2013
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