Category Archives: divorce due to false 498a

498a Dv 125 wife torments sisters in laws & drives one out ! Husband wins divorce @ P&H HC. 16 years of misery ends !!

  • Married in 2000, the wife is sick for a long time with husband meeting all medical expenses
  • She leaves matrimonial home circa 2002 and never returns
  • In spite of husband calling her back many times she refuses. Finally goes on to file false 498a against the husband “…. Ultimately she got registered FIR No.163 of 2002 under Sections 498-A/406 IPC against the husband and his family members. She also filed petition under Section 125 Cr.P.C against the husband….” in which case the husband and others are acquitted “…competent criminal Court in the trial arising out of FIR No.163 dated 08.09.2002, registered under Sections 406/198- A/323/34 IPC, at Police Station Julana. Accused Chattar Singh, Dhanno and Naveen were acquitted by the criminal Court vide judgment dated 14.07.2009. Chattar Singh and Dhanno are the parents of Naveen (husband). The criminal Court while acquitting the accused in the aforesaid case recorded the findings that admittedly there was no medical evidence to support the version of the prosecution witnesses regarding beatings and unconscious breathlessness of the victim for 3-4 days. The complainant herself admitted that she came to the parental house along with her daughter of her own and in these circumstances, no fault could be attributed to the accused persons….”
  • Even during her stay she is so cruel to her husband and her sister’s in law (bhabi) that she drives out one of her bhabis and victimizes another bhabi !! “…Respondent-Husband further alleged that the attitude of the wife was so cruel that she also made life of her Bhabi namely Gayatri Devi wife of Devender Singh a hell in her house and thereafter the wife along with her family members turned out Gayatri Devi from her matrimonial house in village Julana. Gayatri Devi also moved an application against the appellant- wife in Mahila Police Station. The wife along with her family members harassed and humiliated the second wife of Devender namely Kavita, who also left the house and lodged the complaint under Sections 406/498-A IPC against the appellant-wife and her family members. Appellant-wife played active role in the occurrence where Kavita was victimized. With these allegations the original petition came to be filed…
  • finally husband wins divorce at family court in 2006. Wife goes on appeal and that drags on for a decade
  • at the HC the wife’s counsel argues that the words ‘benefit of doubt’ is used in the husband’s 498a acquittal and so his acquittal is not on merits and so he should NOT be granted divorce
  • The Hon P & HC appreciates the facts, and dismisses the wife’s appeal, thereby confirming husband’s divorce !! “….[20]. The words ‘benefit of doubt’ cannot be appreciated in the manner as sought to be projected by the learned counsel for the appellant. The acquittal was on merits as there was no incriminating evidence available on record, therefore, use of words like ‘benefit of doubt’ was the result of standard practice in the trial courts and was simply a misnomer. The entrustment of dowry was not proved. Guilt of the accused could not be brought to the hilt. The order of acquittal recorded by the criminal Court was upheld by the First Appellate Court in appeal as well……”
  • Additionally the Honourable court also confirms an important dictum that “…. The parties were living separately from 10.02.2002. The decree was granted on 01.03.2006 during pendency of the criminal case. The acquittal recorded during pendency of the appeal can be taken into consideration by way of judicial notice...” and so considers the acquittal in 498a case as valid grounds for divorce

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO-M No.65-M of 2006 (O&M)

Date of Decision: 31.05.2016

Smt. Mukesh ……Appellant

Vs

Naveen Kumar …..Respondent

CORAM:

HON’BLE MR. JUSTICE M. JEYAPAUL

HON’BLE MR. JUSTICE RAJ MOHAN SINGH

Present:Mr. Ashok Aggarwal, Advocate for the appellant.

Mr. C.B. Goel, Advocate for the respondent.

RAJ MOHAN SINGH, J.

[1]. Appellant-wife being respondent in the original petition filed before the Additional District Judge, Sonepat suffered the contested decree under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’), dissolving the marriage amongst the parties by decree of divorce on the ground of cruelty and desertion. She has ventured to file the present appeal against the said judgment and decree dated 01.03.2006.

[2]. Brief facts as gathered from the record are that the respondent-husband filed petition under Section 13 of the Act against the appellant-wife on the averment that the marriage among the parties was solemnized on 07.11.2000 according to Hindu rites and ceremonies. The wife started living with the husband as his legally wedded wife. Marriage was consummated and one female child took birth out of this wedlock on 30.08.2001, who was living with the appellant-wife. The marriage was simple and dowry-less. Respondent-husband attributed allegations of arrogance and hostile behavior of the appellant-wife towards him and his family members. Husband also alleged that the wife was short tempered and used to pick quarrels on trivial issues. She remained ill from the very first day of the marriage and was provided medical attention till the date of delivery. She was treated in Kuldeep Nursing and Maternity Home, Gohana on 14.12.2000 and her treatment continued till 30.06.2001. Ultimately child took birth on 30.08.2001 in PGIMS, Rohtak. The entire expenses were borne by the husband. She was again checked up in the Hospital and CT scan was also got conducted.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

[3]. It was further alleged by the respondent-husband that he treated the appellant-wife with all love and affection, but inspite of that her behaviour never changed towards him and his family members. After the birth of the child, the wife started leaving the matrimonial house without prior consent of the husband and his family members. The persuasion of the husband became futile. Husband was unemployed and was having no source of income. The wife was in the habit of extending taunts and also pressurised respondent-husband to settle at her parental house at Julana with her brother, who was employed in Health department.

[4]. Respondent-Husband further alleged that on 10.02.2002, the wife along with minor daughter left the matrimonial house. The respondent-husband and his family members kept on searching her and they went to the parental house where both of them were present. She was reluctant to come to the matrimonial house and gave threat to the husband and his family members for implicating them in false criminal case. Ultimately she got registered FIR No.163 of 2002 under Sections 498-A/406 IPC against the husband and his family members. She also filed petition under Section 125 Cr.P.C against the husband. Wife was an educated lady whereas the husband was unemployed, who was in search of job. Husband was fully dependent upon the income of his parents.

[5]. Respondent-Husband further alleged that the attitude of the wife was so cruel that she also made life of her Bhabi namely Gayatri Devi wife of Devender Singh a hell in her house and thereafter the wife along with her family members turned out Gayatri Devi from her matrimonial house in village Julana. Gayatri Devi also moved an application against the appellant- wife in Mahila Police Station. The wife along with her family members harassed and humiliated the second wife of Devender namely Kavita, who also left the house and lodged the complaint under Sections 406/498-A IPC against the appellant-wife and her family members. Appellant-wife played active role in the occurrence where Kavita was victimized. With these allegations the original petition came to be filed.

[6]. Appellant-wife being respondent in the original petition contested the case by filing written statement. All the allegations were denied. Filing of criminal case was admitted. Source of income available with the husband was asserted. Filing of petition under Section 125 Cr.P.C., was also admitted. The story viz-a-viz. wives of Devender Singh namely Gayatri Devi and Kavita was denied and appellant-wife claimed that she never participated in those episodes. No Panchayat was ever convened. She showed her willingness to join the matrimonial house with the respondent-husband, provided that he changes his rude behaviour. The filing of the petition was claimed to be a devise to avoid payment of maintenance.

[7]. Both the parties went to the trial on the following issues:- “1. Whether the petitioner is entitled for a decree of divorce on the grounds mentioned in the petition, as alleged? OPP  2. Relief.”

[8]. Both the parties led their respective evidence to prove their case.

[9]. After leading evidence, trial Court appreciated the material on record and accepted the petition vide judgment and decree dated 01.03.2006. That is how the present appeal came to filed by the appellant-wife.

[10]. We have heard learned counsel for both the sides.

[11]. During pendency of the appeal civil misc. No.7308-CII of 2014 was filed by the respondent-husband seeking to adduce additional evidence in the form of Annexures P-1 to P-4, which are nothing but the orders passed by the concerned Courts from time to time. In order to properly appreciate the controversy, the said application is allowed and the accompanying documents are taken on record as additional evidence for deciding controversy effectively and appropriately between the parties.

[12]. With the pleadings and evidence on record, whether the instances of cruelty and desertion as alleged are made out or not became inconsequential in view of the development which took place later on for which this Court is always competent to take judicial notice. More particularly, as per information submitted by the respondent by moving application under Order 41 Rule 27 read with Section 151 CPC, it is a settled principle of law that the Court is always competent to take notice of subsequent events for effective adjudication of the controversy between the parties.

[13]. Annexure P-1 as adduced along with the said application for additional evidence is the decision rendered by the competent criminal Court in the trial arising out of FIR No.163 dated 08.09.2002, registered under Sections 406/198- A/323/34 IPC, at Police Station Julana. Accused Chattar Singh, Dhanno and Naveen were acquitted by the criminal Court vide judgment dated 14.07.2009. Chattar Singh and Dhanno are the parents of Naveen (husband). The criminal Court while acquitting the accused in the aforesaid case recorded the findings that admittedly there was no medical evidence to support the version of the prosecution witnesses regarding beatings and unconscious breathlessness of the victim for 3-4 days. The complainant herself admitted that she came to the parental house along with her daughter of her own and in these circumstances, no fault could be attributed to the accused persons. The criminal Court also found that the accused had faced the allegations twice and it was doubted whether family of the complainant was using the method of filing complaint for grabbing the money from the accused persons and that is why the complainant already tried to involve as much relatives of the husband as they wanted. As regards offence under Section 406 IPC, the prosecution relied upon the version of complainant Mukesh and her mother whereas both the versions were found to be different. Entrustment of the dowry articles to any of the accused was not proved.

[14]. The submission of the learned counsel for the appellant-wife that the articles were lying in the police station from where the same were not claimed by the complainant was a misnomer only in view of the positive findings recorded by the criminal Court that entrustment of the dowry articles was not proved with the accused. The criminal Court while disbelieving the prosecution story ultimately held that the offence whatsoever against the accused was not proved by the prosecution and the court felt no doubt to acquit the accused persons by extending benefit of doubt in their favour. The words used as ‘benefit of doubt’ by the criminal Court were the standard observations of the court and was a misnomer, otherwise the evidence on record before the criminal Court was sufficient to discard the prosecution story to the hilt.

[15]. Counsel for the respondent-husband also relied upon Annexure P-2 the orders passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005, wherein the complaint filed under Section 12 of the aforesaid Act was held not maintainable though that order is of not much significance so far as the controversy involved in the present case is concerned.

[16]. Annexure P-3 is also an order passed by the competent Court under Section 125 Cr.P.C. for grant of maintenance in favour of wife. The petition was disposed of on the basis of consensus arrived at between the parties and, therefore, this order is also of no significance in the present context.

[17]. Annexure P-4 is the judgment rendered by the Court of Additional Sessions Judge, Jind in appeal, against the judgment of acquittal dated 14.07.2009 recorded by the Judicial Magistrate, Jind, which was challenged by the State and the same was dismissed vide judgment dated 06.04.2011.

[18]. The parties were living separately from 10.02.2002. The decree was granted on 01.03.2006 during pendency of the criminal case. The acquittal recorded during pendency of the appeal can be taken into consideration by way of judicial notice.

[19]. In the light of aforesaid facts the judgments cited by the learned counsel for the appellant Radha Rani vs. Har Bhagwan, 2005 (1) RCR (Civil) 508 and (Smt). Asha Gupta alias Anju Gupta vs. Rajiv Kumar Gupta, 2005 (1) RCR (Civil) 663 do not advance the case of the appellant in any manner. Case laws cited by the learned counsel for the appellant are on different premise and are of no help to the appellant-wife. After acquittal of the husband in criminal case, ground of cruelty came to the fold of the respondent-husband, who can effectively put up this ground to allege cruelty and to seek divorce. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

[20]. The words ‘benefit of doubt’ cannot be appreciated in the manner as sought to be projected by the learned counsel for the appellant. The acquittal was on merits as there was no incriminating evidence available on record, therefore, use of words like ‘benefit of doubt’ was the result of standard practice in the trial courts and was simply a misnomer. The entrustment of dowry was not proved. Guilt of the accused could not be brought to the hilt. The order of acquittal recorded by the criminal Court was upheld by the First Appellate Court in appeal as well.

[21]. In view of aforesaid, this Court does not find any worth in the appeal filed by the wife and the same is accordingly dismissed.

(RAJ MOHAN SINGH)                             (M. JEYAPAUL)
JUDGE                                               JUDGE

May 31, 2016

Atik

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


Filing false cases, physical attacks all constitute cruelty. 30 years of pure misery ends with Divorce ! Raj HC

Marriage in 1979 (Yes 37 years ago !!). Wife leaves husband in 1983. there is very little cohabitation since then, almost nil cohabitation since 1986 ! There are numerous instances of wife beating or quarreling with the husband, wife’s relatives misbehaving with husband’s parents, wife’s people trying to destroy husband’s father’s wheat crop, and a false 498a where husband and co are completely acquitted. However since the first divorce attempt by the husband goes un successfull, husband goes to SC, who sends case back to Raj HC. At Raj HC Abala Nari wife claims that she is ready to come back !! Still Raj HC appreciates the facts and grants the husband divorce on grounds of cruelty !

The Hon court concludes that “…In the instant case in our view there are several complaints against the respondent who took law into her hands, tried to beat the appellant and his family members not only once but on other occasions as well and created commotion even outside the factory gate with the appellant, coupled with filing of cases u/sec. 498-A and other facts clearly lead to irresistible conclusion that cruelty was certainly caused by the respondent against the appellant husband both mental as well as physical. ….”


IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Misc. Appeal No.244/1993

Nathulal  v.  Nathi Bai

Judgment reserved on                        5.4.2016
Judgment pronounced on                        31.5.2016

Hon’ble Mr. Justice Ajay Rastogi
Hon’ble Mr. Justice J.K. Ranka

Mr. Ravi Kasliwal, counsel for appellant
Mr. Suresh Pareek, Sr. Counsel, assisted by Mr. N.C. Sharma, counsel for respondent

By the Court (per Ranka, J.)

  1. This appeal is directed against the judgment & decree dated 24.2.1993 passed by the Family Court, Kota, by which application filed by the appellant u/sec. 13 of the Hindu Marriage Act, 1955 (for short the Act 1955), has been rejected with cost of Rs.1000/-.
  2. This case has a chequered history of litigation.
  3. The husband, Nathulal filed a divorce petition u/sec. 13 of the Act 1955, which was registered as Civil Misc. Case No.183/1991, and the same came to be dismissed by the Family Court. Appeal against the said judgment and order on an earlier occasion came to be decided by Division Bench of this Court vide order dated 1.3.1997, by which Coordinate Bench of this Court allowed the appeal and set aside the judgment and decree of the Family Court and granted a decree for divorce in favour of the appellant-husband. The respondent wife, Nathi Bai carried the matter to the Apex Court in Civil Appeal No.3422/1997 that came to be allowed vide order dated 8.10.2002 and order of the Division Bench in the present appeal, No.244/1993 dated 1.3.1997 was set aside and the matter was remitted to the Division Bench of this Court for fresh hearing and disposal in accordance with law.
  4. The appellant moved an application u/O.41 R.27 CPC for taking subsequent events on record. Taking note of the various contentions and in the light of directions of the Apex Court vide order dated 8.10.2002, the Coordinate Bench of this Court vide judgment dated 9.10.2006, dismissed the appeal filed by the appellant. The appellant filed a review petition which too came to be dismissed by the Coordinate Bench of this Court on 20.12.2006 and the application filed u/O. 41 R.27 CPC remained unattended. The appellant filed Civil Appeal No.(S) 366-367/2009 before the Apex Court against the judgment of this Court dated 9.10.2006 and dismissal of the review application dated 20.12.2006. The Apex Court allowed the appeal of appellant and again remitted the matter back to this Court with a direction to take into consideration application u/O.41 R.27 CPC and decide afresh. The operative portion of the order of Apex Court is quoted thus :-
    • Keeping all the circumstances in view, since avowedly the High Court has not decided the appellant’s application under Order XLI Rule 27 CPC, the course which commends itself to us is to remand the matter in its entirety to the High Court with a direction to first decide the Appellant’s application under Order XLI Rule 27 CPC. The Impugned Order is accordingly set aside.
    • The matters are remanded back to the High Court for consideration afresh.
    • Appeals stand disposed of. No order as to costs.
  5. After the matter was remitted back to this Court, application u/O.41 R.27 was allowed and the judgments annexed thereto were taken on record vide order dated 9.7.2015. Having noticed the above facts, the salient features for disposal of present appeal are noticed hereunder.
  6. Admittedly the appellant-husband got married with the respondent-wife on 27.4.1979 as per the Hindu rites and custom. It has been alleged that in the month of February 1983 respondent wife left the house of appellant husband without any reason and did not turn back. The appellant filed a divorce petition u/sec. 13 in the year 1986 which the appellant withdrew as both the parties entered into a compromise. It is further alleged that in the month of August 1986, respondent came back to the house of the appellant and for some time the behaviour of the respondent was normal, but she started giving threatening and started quarreling with the appellant. It is further alleged that torture of the respondent had gone to such an extent that the respondent lodged a false case against him u/sec. 498-A and 406 IPC in the police station Vigyan Nagar, Kota, on 28.8.1986 against her in-laws in which allegations were levelled regarding demand of dowry against the father and brothers of the appellant and the police after investigation submitted final report, the Investigating Officer having found the entire allegations to be false and that was accepted by the Competent Court of jurisdiction. It is also alleged that the respondent pushed the cycle of the appellant-husband and caught hold of his collar and after abusing him shouted that she would not allow him to go to duty and shut him up in the room and thus there was continuous quarrel in between the parties.
  7. The appellant has also lodged a report on 30.8.1988 against the respondent. It has further been stated that the appellant is serving in Instrumentation Ltd., Kota, and the respondent on one occasion reached the factory premises and misbehaved with the appellant outside the factory gate. It is also alleged that on 2-3 occasions respondent wife brought two persons who attacked the appellant at the time when he was returning from his office. It has further been alleged that the respondent was bent upon to commit his murder and looking to the conduct and behaviour of the respondent and fact of cruelty inflicted upon the appellant, the appellant was unable to live with her and thus an application was moved u/sec. 13 of the Act 1955 in the year 1989, which came to be dismissed as aforesaid.
  8. Mr. Kasliwal, the learned counsel for the appellant has contended that taking into consideration the facts brought in the application for divorce coupled with the material on record, clearly proves that the respondent caused continuous mental and physical cruelty on the appellant husband. The learned Family Court has not considered the material on record insofar as the cruelty of the respondent wife is concerned. There are oral as well as documentary evidence available on record which proves the same. He further contends that the behaviour and conduct of the respondent wife since beginning was not proper and on a small pretext, she left the matrimonial home initially and admittedly did not come for a period of about 3 years and the appellant had to file an application u/sec. 13 of the Hindu Marriage Act before the Family Court, which however was withdrawn because of the intervention of the family members and her relatives, the respondent wife came back to the matrimonial home and after staying, her behaviour for sometime was normal but a false complaint was made against the father and brothers of the appellant on 28.9.1986 with the allegations of beating and demanding dowry, however, after investigation the police filed final report and the same was accepted by the competent court.
    • He drew attention on the complaints/cases :-
    • (i) 28.8.1986 :  FIR No.62/1986 u/sec. 498A IPC by Nathi Bai against appellant’s father and brothers : After investigation police found allegations false.
    • (ii) 5.10.1989 : Complaint by Vikas Adhikari, Panchayat Samiti Sultanpur (where father of the appellant Nathu Lal was employed) to the effect that respondent Nathi Bai came at the office and tried to create nuisance by which office work was disrupted.
    • (iii) 14.12.1989 : Complaint by Dwarka Lal, father of the appellant against Nathi Bai and her brothers to the effect that they came at their house and misbehaved with him and mother of the appellant, even the clothes of appellant’s mother were dis-robed.  On an FIR having been filed by the appellant, challan was filed against the respondent before the competent court and the respondent had been bound down by the Court of Law to behave well with the appellant.
    • (iv) 23.3.1990 : FIR No.37/1990 u/sec. 498A IPC by Nathi Bai against father, mother and brothers of appellant. Vide order dated 18.1.2003 passed by Addl. CJM, Fast Track, Digod (Kota), accused were found not guilty in Case No.428/2002.
    • (v) 7.4.1990 : FIR No.42/1990 u/sec. 498A and 324 IPC by Nathi  Bai against father and mother of appellant. Vide order dated 31.1.2003 passed by Addl. CJM, Fast Track  Digod (Kota), accused were found not guilty in Case No.117/2002.
    • (vi) 21.5.1990 : Complaint No.867 registered at Police Station Vigyan Nagar, Kota, on information received over telephone that at the factory gate of Instrumentation Limited Nathu Lal and Nathi Bai were quarreling and fighting.  Both were taken to the police station by police. However, subsequently they were released on bail by order of ADM (City) Kota.
    • (vii) 5.12.1990 : Dwarka Lal, father of appellant filed a complaint before Dy.SP (Rural), Kota, to the effect that Nathi Bai tried to destroy crop of Wheat in his fields by discharging canal water.
    • (viii) 14.3.1991 : FIR No.21/1991 u/sec.341, 323/34 IPC by Mangi  Bai (mother of appellant) against Nathi Bai and her brothers. Vide order dated 25.7.2002 passed by Judl. Magistrate (First  Class), Digod, accused were found guilty in Case No.366/1997.
  9. He also drew attention of this Court on application under O.41 R.27 CPC by which he placed reliance on three aforementioned orders dated 25.7.2002 (Case No.366/1997), 18.1.2003 (Case No.428/2002), and 31.1.2003 (Case No.117/2002) passed by Digod Courts. Thus, he contended that there has been plethora of cases and even one criminal case is sufficient to prove cruelty whereas in the instant case there are several criminal cases which certainly proves to the hilt about the physical and mental cruelty against the appellant. He also relied upon the statements of several witnesses recorded, which clearly brings on record the behaviour of the respondent.
  10. He further contended that admittedly from August 1989, now almost about 27 years, both husband and wife are living separately, and there being no issue out of the wedlock, no bonding between them, the appellant is now aged about 55 years, certainly needs now a peaceful life, at-least at this stage of his career/life, which has been totally ruined/spoilt by the respondent. He contended that both the appellant and respondent merely can be said to be husband and wife on record but in reality their marriage does not subsist and it is a case of irretrievable breakdown of marriage and under such circumstances, the decree of divorce deserves to be granted in favour of the appellant and the appeal may be allowed. He relied upon the following judgments :-
    • Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558;
    • Mayadevi (Smt.) v. Jagdish Prasad (2007) 3 SCC 136;
    • Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC 288;
    • Smt. Savitri Balchandani v. Mulchand Balchandani AIR 1987 Delhi 52;
    • Jayakrishna Panigrahi v. Smt. Surekha Panigrahi AIR 1996 Andhra Pradesh 19;
    • Smt. Sadhana Srivastava v. Arvind Kumar Srivastava AIR 2006 Allahabad 7;
  11. Per contra Mr. Suresh Pareek, learned Sr. Counsel for the respondent, assisted by Mr. N.C. Sharma, Advocate, contended that the respondent was always ready, willing and prepared to live as wife of the appellant, peacefully but the appellant was never interested in keeping the respondent and created hindrances by filing complaints for no rhyme or reason. He further contended that the respondent who is present in Court, has categorically, expressly and openly said that she is ready and willing to live with the appellant in the manner appellant wishes, and words before this Court should be taken in the right spirit and at-least the sacred function of the Court in matrimonial matters, should be taken sympathetically, as it is a matter of life and death of a poor and illiterate lady from a village background who do not know the niceties of law, may have taken some abrupt action which does not come within the definition of cruelty.
  12. He further contended that the appellant and his family members demanded dowry and only under such compelling circumstances, complaint was lodged u/sec. 498A IPC by the respondent which by itself cannot be said to be a cruelty. She lived with the appellant, admittedly, from August 1986 to the year 1989 but then, the appellant himself was not interested and created complex situations.
  13. He further contended that the appellant also filed an application for judicial separation which too was dismissed vide order dated 5.12.1995, and contended that the judgment of Trial Court relied upon by the learned counsel for the appellant and brought on record with the application under O.41 R.27 CPC were not before the Family Court and the same cannot be taken into consideration and if at all required, the matter may be remitted to the Family Court for reconsideration of subsequent developments/judgments.
  14. He further contended that the Family Court has taken into consideration each and every factor, particularly the statements of witnesses and came to a correct conclusion which is not required to be interfered with, and vehemently supported the order passed by the Family Court and contended finally that the husband being habitual of filing divorce petition or judicial separation application, wants to get rid of her by seeking divorce by some method. He further contended that age is no consideration in matrimonial matters, rather contended that at this age of about 55 years or so, both husband and wife needs companionship and endeavour of the Court should be to see that they are reunited not only on papers but in reality.
    • He relied upon the following judgments :-
    • Archna Sharma v. Suresh Kumar Sharma I (1995) DMC 133 [Punjab & Haryana High Court];
    • Sujit Banerjee v. Anita Banerjee II (1997) DMC 48 (DB) [Calcutta High Court];
    • Vegi Jagadesh Kumar v. V. Radhika II (2000) DMC 470 (DB) [Andhra Pradesh High Court];
    • Smt. Santosh Sharma v. Ashok Kumar AIR 2001 Delhi 422;
    • Jagat Singh v. Sarojini Devi I (2002) DMC 645 [Punjab & Haryana High Court];
    • Bishwanath Pandey v. Anjana Devi II (2002) DMC 397 (DB) [Jharkhand High Court];
    • Yudhishter Singh v. Smt. Sarita I (2003) DMC 538 (DB) [Rajasthan High Court];
    • Hari Ram v. Lichmaniya and Others AIR 2003 Rajasthan 319;
    • P.Malleswaramma v. P.Prathap Reddy AIR 2006 Andhra Pradesh 4;
    • Jitendra Singh v. Yashwanti II (2008) DMC 482 [Delhi High Court];
    • Pramodkumar C Shah v. Rajulaben Pramodkumar Shah II (2013) DMC 240 (DB) (Guj.);
    • Kajal Das v. Juli Mahajan (Das) III (2013) DMC 295 (DB) (Gau.);
    • Chetan Dass v. Kamla Devi RLW 2001 (2) SC 201;
  15. We have heard the learned counsel for the parties and have gone through the impugned order and judgments passed by this Court earlier minutely and the observations of the Apex Court.
  16. At the outset, we may quote sec. 13(1) of the Act 1955 and also quote sec. 498A, 323 and 406 IPC for disposal of the present appeal, which reads ad infra :-
    • 13. Divorce-
    • (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
    • (i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
    • (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
    • (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
    • (ii) has ceased to be a Hindu by conversion to another religion ; or
    • (iii) has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
      • Explanation- In this clause- (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment; or
    • (iv) has been suffering from a virulent and incurable form of leprosy; or
    • (v) has been suffering from veneral disease in a communicable form; or
    • (vi) has renounced the world by entering any religious order; or
    • (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;…
    • 498A. Husband or relative of husband of a woman subjecting her to cruelty.
    • Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
      • Explanation.For the purpose of this section, cruelty means
      • (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
      • (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
    • 323. Punishment for voluntarily causing hurt.
    • Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
    • 406. Punishment for criminal breach of trust.Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
  17. Admittedly the ground for divorce taken by the appellant against the respondent is that the respondent has treated the appellant with cruelty.
  18. It would also be apt to quote the statements of material witnesses from both the sides to make home what has transpired in between the parties :-
    • AW-1 Nathulal son of Dwarka Lal stated, inter alia, that on 12.5.1989 at about 8:AM, Nathi Bai misbehaved with him and tried to prevent him from going to his office. He was rescued by neighbourers. One day she fought with him and told that neither she will allow him to go to his duties, nor let him live in Kota, and threatened to even kill him. He also stated that she along with her brothers after abusing him went to his parents’ house where they misbehaved with them and even declothed his mother.
    • AW-3 Dwarka Lal son of Magan Lal, inter alia, stated that Nathi Bai used to misbehave with him and his wife and even they have suffered beating from her and her brothers. On being cross examined, he stated that he has no knowledge how burn marks at her leg were received by her but she used those marks to gain sympathy from others.
    • AW-4 and AW-5 Dinesh Gautam son of Moti Shankar and Banwari Lal son of Madan Lal, have stated that they have witnessed the incident of Nathu Lal being abused by Nathi Bai in front of the factory gate of Instrumentation Ltd.
    • AW-6 Shyam Manohar son of Chaturbhuj, inter alia, has stated in his statement that on 12.3.1991 at about 2:30 in the afternoon when he was going home from village bust stand, he saw 20-25 persons together near the Primary School, and Nathi Bai was also there along with her three brothers and they were abusing and ill-behaving with father and mother of the petitioner Nathu Lal.
  19. On perusal of the witnesses at the instance of the appellant, in our view, clearly proves that the respondent is in the habit of misbehaving not only with aged parents of the appellant and his brothers, but the appellant himself. Leaving apart the statement of AW-1, as he is petitioner appellant-Nathu Lal. Dinesh Gautam (AW-4), Banwari Lal (AW-5), Shyam Manohar (AW-6) and other witnesses have described about the incident of fight which ensued in between the parties outside the factory gate, where the respondent was found beating the appellant and abusing him in front of the staff and officials of the Instrumentation Ltd. NAW-1 Nathi Bai wife of Nathu Lal in her statement, inter alia, stated that she did not fight with her husband on 12.5.1989 nor abused him. She also denied that she had ever threatened her husband. She then stated that after September 1989 she neither went to her in-laws’ house nor abused them. She denied the allegation that she ever wished that her husband should die so that she gets employment in his place. She alleged that for want of dowry, Nathu Lal had left her and differences have widened between them. NAW-2, NAW-3 and NAW-4 Ghanshyamdas son of Madhodas, Ram Ratan Swami, and Birdhilal both sons of Ram Narain, inter alia, stated that dispute between the parties is for demand of dowry by Nathu Lal’s parents. NAW-5, NAW-6 Saroj Singh daughter of Ravindra Pratap Singh, and Kamla Bai wife of Ramkumar, have stated, inter alia, that one day Nathi Bai was weaping and standing outside the house, they enquired from her about the reason of her weaping and standing outside the house, to which Nathi Bai answered that she is wife of Nathu Lal but he has sent a notice/letter of divorce to her. She further stated that when the dispute between the parties grew up, one day in 1986 members of the colony including them, went to Vigyan Nagar Police Station and lodged a report to the effect that Nathi Bai is wife of Nathu Lal but he uses force against her and misbehaves with her. Both the witnesses further stated that younger brothers were residing with the petitioner who used to forcibly push Nathi Bai to go out of the house and torture her. They also claimed that with the help other neighbourers they made Nathi Bai to enter in the house.
  20. We have gone through the statements recorded at the instance of the respondent. While Ghanshyamdas (NAW-2), stated that there was a demand of gold chain in dowry which was conveyed to him by the father of respondent-Nathi Bai, however, in cross-examination he denies having any talk with the appellant in this regard. Ram Ratan Swami (NAW-3), though supports the version of Ghanshyamdas (NAW-2), but speaks of the incident about 10-12 years old and that too by mentioning that respondent’s father had told him about demand of dowry, however, he admitted in cross-examination that the appellant-Nathu Lal never raised any demand for any chain in his presence. Birdhilal (NAW-4), though he is stated to be a Head Constable in the Police Department, but he does not remember his place of posting when appellant’s father and appellant had said about demand of one tola gold chain. In cross-examination, however, he stated that the said incident did not happen in his presence. Ms. Saroj Singh (NAW-5), and Kamla Bai (NAW-6), Mrs. Santosh wife of Suresh Chandra (NAW-7), Mrs. Kesar wife of Radhe Shyam (NAW-8), Mrs. Shanti Verma wife of K.L. Verma (NAW-9), all spoke about the incident of 1986, which in our view is not required to be stressed upon particularly in view of the fact that thereafter admittedly both were living jointly at the instance of the family members of the respondent, and it is only after 1989 that further disputes took place in between the parties.
  21. It would be appropriate to deal the judgments of the Apex Court which have laid down the principles which help discharge the Family Court and other Courts the onerous task in a more realistic and effective manner to decide petitions like this.
  22. In the case of Naveen Kohli v. Neelu Kohli (supra), the Apex Court has laid down the principles which will help discharging the Family Courts and other Courts the onerous task in a more realistic and effective manner to decide the petitions, and the same is quoted thus :-
    • 66. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act 1955.
    • 67. The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would be around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.
    • 68. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920 included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond, J. in a passage which has now become classic, enunciated the breakdown principle in these word: “The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.”
  23. The Apex Court in the case of Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 has held that cruelty is a state of mind, reiterating certain illustrative cases where inference of mental cruelty can be drawn. It would be appropriate to quote the relevant para 101 of the judgment :-
    • 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.
  24. The Apex Court has found that there can be no uniform standard but deemed it appropriate to enumerate some instances of human behaviour in dealing with the case of mental cruelty. In our view, sub paras (i), (ii), (x) and (xiv) are relevant in the instant case.
  25. In the case of K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226, not only the Apex Court adjudged the above points of mental cruelty as expressed in the case of Samar Ghosh (supra) but also added few more points namely, making unfounded defamatory allegations against spouse or his relatives even in pleadings, filing repeated false complaints or issuing notices or news items which may have adverse impact on the business prospects or the job of spouse and filing repeated complaints and cases against spouse in the facts of the case, amount to causing mental cruelty.
  26. It is true that the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. It is true that every matrimonial conduct which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses which happen in day to day married life may also not amount to cruelty. Mental cruelty may consist of verbal abuses and insults, by using filthy and ugly language leading to constant disturbance of mental peace of the other party.
  27. In the case of Mayadevi (smt) v. Jagdish Prasad (supra) the Trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to wife’s behaviour on the date of judgment in the criminal case. After the judgment of conviction was pronounced, she threatened the husband to kill him and prosecute him. It was also noted by the Trial Court that allegation made by her alleging dowry demand was disbelieved and the police gave final report stating that the case was falsely lodged and on these facts the Trial Court granted the decree of divorce, which was confirmed by the High Court. The Apex Court taking into consideration the facts and circumstances in that case held that the husband was subjected to mental and physical cruelty and thus dismissed the appeal.
  28. In the present case as well, the case instituted u/sec. 498-A IPC was dismissed and the same has not been assailed before higher forum.
  29. In the instant case, the contention of learned counsel for the respondent that proceedings u/sec. 498-A IPC and other cases were filed subsequently cannot be considered, but in the light of the judgment of Vishwanath Agrawal (supra) the contention of learned counsel for the respondent is repelled.
  30. We find that the judgments in Vishwanath Agrawal v. Sarla Vishwanath Agrawal (supra), Smt. Savitri Balchandani v. Mulchand Balchandani (supra), Jayakrishna Panigrahi v. Smt. Surekha Panigrahi (supra), Smt. Sadhana Srivastava v. Arvind Kumar Srivastava (supra), A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22, and Suman Kapur v. Sudhir Kapur (2009) 1 SCC 422 were relied upon wherein it is held that false, scandalous, malicious, baseless and unproved allegations even in the written-statement is cruelty to the other party.
  31. It would also be appropriate to mention about the judgments relied upon by the learned counsel for respondent.
  32. In the case of Sujit Banerjee v. Anita Banerjee (supra) the High Court found that a unilateral act of one spouse, reducing the relationship to a situation where the marriage would be deemed to have broken down and such act unless made an issue by the wronged spouse cannot be deemed to be a valid ground to take away the legal right which was caused by the solemnization of marriage. In the abovesaid case, wife did not opt to dissolve the marriage in spite of suffering at the hands of the husband and there was bona fide on her part. On these facts the High Court dismissed the appeal. In our view, the facts are different and entirely distinguishable to what are available in the instant case.
  33. In the case of Archna Sharma v. Suresh Kumar Sharma (supra), the Court found that allegations of cruelty were not pleaded in the divorce petition by seeking amendment thereto and, therefore, not put to trial, and the Court observed that the allegations of cruelty could not be taken note of while granting divorce unless these were made a part of the divorce petition. The High Court in that case was not inclined to grant decree of divorce. However, in the light of the judgment in Vishwanath Agrawal (supra) of the Apex Court, where it has been held that subsequent events can be taken note of and considered, the said judgment is contrary to the law laid down by the Apex Court and is distinguishable. To the same effect is the judgment relied upon by the learned counsel for respondent in the case of Smt. Santosh Sharma v. Ashok Kumar (supra).
  34. Similarly in the case of Vegi Jagadesh Kumar v. V. Radhika (supra), there were mere accusations, taunts by one against other and the High Court found that they were not willful in nature and does not constitute cruelty. The High Court also observed that the other party committed willful and unjustifiable acts inflicting pain and misery on the complainant and causing injury to his/her health. The conduct of complainant must be serious and higher than the wear and tear of married life. It is not cruelty, if acts complained of are not violent in nature. Mere complaints, accusations, or taunts by one against the other if the same are not willful in nature, do not constitute cruelty. The other judgments relied upon by the learned counsel for respondent in the cases of Pramodkumar C Shah (supra), Jagat Singh (supra), Jitendra Singh (supra), Chetan Dass (supra), Kajal Das (supra), Yudhishter Singh (supra), Hari Ram (supra) and P.Malleswaramma (supra), are judgments where the Courts found that cruelty on the spouse was not proved, or one cannot take advantage of his own wrong and on mere fact that erring spouse is moody, whimsical, irritable or inconsiderate, are no grounds for divorce. However, we have taken into consideration the judgments of the Apex Court and the conduct of the respondent in repeatedly causing cruelty on the appellant. Therefore the judgments are distinguishable on facts.
  35. In the instant case in our view there are several complaints against the respondent who took law into her hands, tried to beat the appellant and his family members not only once but on other occasions as well and created commotion even outside the factory gate with the appellant, coupled with filing of cases u/sec. 498-A and other facts clearly lead to irresistible conclusion that cruelty was certainly caused by the respondent against the appellant husband both mental as well as physical.
  36. Taking into consideration the facts as noticed hereinbefore, and the complaints lodged by both the sides, and in particular at the instance of the respondent-Nathi Bai, it is clear that the criminal cases filed at her instance stood dismissed. However, the criminal cases lodged at the instance of the family members of the appellant stood allowed against the respondent, who was found guilty, and in our view taking into consideration the judgments cited supra, clearly make out a case of physical and mental cruelty against the appellant, and a clear case is made out for grant of decree of divorce.
  37. We have also noticed that the respondent filed several complaints against the appellant, she was also convicted in one of the cases involving father, mother and brothers of the appellant, and was sent to jail, whatever time she lived with her husband, she never lived peacefully with him. She left her matrimonial home and came back after more than 3 years. Thereafter also there was no improvement in the conduct of the respondent, as is evident from criminal complaints and the reports of the independent persons against her behaviour so as to gain sympathy of any person. The relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the one that it will be harmful or injurious for him/her to live with the other side. We have given hereinbefore the cases instituted by both the parties against each other. While the cases instituted at the instance of respondent Nathi Bai were found false or/and the accusations made by Nathi Bai were found not guilty, however, in the complaints made at the instance of the petitioner or/and family members, challan was filed against accused Nathi Bai and her brothers and they were found guilty. Thus, this even otherwise proves that the respondent was in habit of filing repeated cases and in our view even one case is sufficient to prove mental cruelty, at-least in matrimonial matters like this.
  38. Though the Court on several occasions tried to persuade both the parties to come to amicable solution through mediation as Courts go slow at-least in matrimonial matters to try to make rapprochement so that bonding of marriage which is considered to be sacred and sacrosanct in the Hindu Law, is maintained/retained.
  39. In matters like this, something more is required to be considered rather than ordinary wear and tear of married life and the Courts have to be very practical and pragmatic in approach while dealing with the divorce petitions filed on the ground of cruelty or otherwise. Foundation of a sound marriage is tolerance, adjustment and respecting one another. The Court has to bear in mind that the problems before it are those of human beings and a delicate bond of husband and wife should be maintained.
  40. Taking into consideration that the respondent has been threatening that she will either put an end to her life or kill the appellant, abusing the husband time and again and threatening that she will make him loose his job, insulting the husband in front of others and his parents also, complaints of independent persons regarding her quarrelsome and uncalled for behaviour, tarnishing not only the image of her husband but also his parents, are almost so grave an order as to imperil the appellant’s sense of personal safety, mental happiness, job satisfaction and reputation, in our humble view a case of cruelty is clearly made out. Taking into consideration that admittedly both have lived separately since 1989 i.e. almost 27 years now and have been fighting tooth and nail against each other, in our view it also can be said to be irretrievable breakdown of marriage or rather it is a failed marriage and the delicate bond of marriage of sacrifice no more is apparent in addition to cruelty and we feel appropriate to let both husband and wife now be made free from the marriage bonding which was solemnized as per Hindu rites and customs in April 1979 i.e. 37 years ago by now, may be dissolved.
  41. In our view, taking into consideration the statements of the witnesses of both sides, the mental cruelty stands proved against the appellant at the instance of the respondent, and the appellant husband deserves indulgence in seeking their marriage dissolved.
  42. A feeble attempt was made by the learned counsel for respondent that the second petition filed by the appellant on the same subject is barred by the principle of res judicata. In our view, taking into consideration the subsequent development and fresh material/evidence, which has come on record for filing of the divorce petition subsequent to earlier petition having been withdrawn, is in order as it can always be filed in view of the subsequent developments. Equally important is that no ground was raised before the Family Court insofar as the second petition is concerned. Accordingly, the argument of learned counsel for the respondent, is rejected.
  43. For the reasons aforesaid, the appeal deserves to be allowed and we quash and set aside the judgment and decree dated 24.2.1993 and their marriage solemnized on 27.4.1979 stands dissolved. A decree for divorce is hereby granted to the appellant. No costs.
    (J.K. Ranka) J.                            (Ajay Rastogi) J.

    db

False 406, false alegations of illicit relation, veneral disease all cruelty. Husband win’s Dvrc. NO maintenance 2 wife !

False case of 406 that is not pursued, false allegations of illicit relations with other women, venereal disease etc which are NOT proven are matrimonial cruelty. Wife files 498a, 406 knowing that the husband is a govt servant and has to run for bail. Divorce granted to Husband. Maintenance to son ONLY if son comes and stays with father at least once a week. CAL HC GEM !!

In this important case, the Hon HC orders “….in a matrimonial suit, even if the plaintiff is unable to prove the allegations of cruelty pleaded in the plaint, a Court is entitled to grant a decree for divorce if it appears that the defendant in the written statement has made unfounded allegations of bad moral character of the plaintiff which are proved to be baseless and for that reason, the plaint is not required to be amended incorporating an assertion that those allegations are baseless.….”

“…In her written statement, she alleged adultery against her husband and pressed the same in evidence. Such fact has been denied by the husband. She in her written statement alleged that the husband was suffering from venereal diseases and that she would apply for examination of the husband by a doctor. The husband in her examination-in-chief denied such fact and thereafter, the wife did not utter anything about such allegation in her examination-in-chief and also did not pray for medical examination of the husband….”

“…From the aforesaid facts it is clear that the wife in spite of making serious allegations against the husband involving moral character did not even try to prove such fact by bringing the witnesses who could throw light on the veracity of the allegations. We are quite alive to the position of law that mere inability on the part of the defendant to prove the allegations contained in the written statement does not authorise the matrimonial court to pass a decree for divorce on the ground that those allegations were baseless; but if the defendant, in spite of availability of the competent witnesses to lend support to the allegations, decides not to examine them without just cause, the Court is entitled to presume that those allegations were baseless by drawing adverse presumption for not producing the best evidence available to her….”

*******************************************

IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction

Present: The Hon’ble Mr. Justice Bhaskar Bhattacharya
And
The Hon’ble Mr. Justice Rudrendra Nath Banerjee

F. A. No. 191 of 2005

Sri Debabrata Chakraborty
Versus
Smt. Rina Chakraborty

For the Husband-Appellant:                Mr. Sambhunath Roy,
Mr. M.M. Bhattacharya,
Ms. Sarmistha Roychowdhury,
Mr. Surojit Roychowdhury.

For the Wife-Respondent:                  Mr. Ajoy Debnath.

Heard on: 04.12.2008.
Judgment on: 24th December, 2008.

Bhaskar Bhattacharya, J.:-

This first appeal is at the instance of a husband in a suit for restitution of conjugal right and in the alternative, for divorce on the ground of cruelty and is directed against the judgment and decree dated 9th June, 2005 passed by the learned Additional District Judge, Third Court, Alipore, in Matrimonial Suit No.34 of 1997, thereby granting a decree for restitution of conjugal rights.

Being dissatisfied, the husband has come up with the present appeal thereby praying for a decree of divorce.

The appellant before us filed in the Court of District Judge, South 24- Parganas, a suit being Matrimonial Suit No.34 of 1997, under Section 22 and/or alternatively under Section 27(1) (d) of the Special Marriage Act, 1954 for a decree for restitution of conjugal rights with further prayer that in the event the wife-respondent was found to oppose the prayer for restitution of conjugal rights, a decree for divorce should be passed on the ground of cruelty. The said suit was subsequently transferred to the Third Court of Additional District Judge, Alipore, and was renumbered as Matrimonial Suit No.665 of 1997.

The case made out by the appellant in the aforesaid suit may be summed up thus:

a) The parties were married on 10th February, 1981 under Special Marriage Act and in the wedlock, a male child was born on 15th June, 1990.

b) The appellant is a government servant and working as a Stenographer Grade-I and is attached to the Directorate of Rationing, Food & Supplies Department, Government of West Bengal. The wife-respondent is also a steno-typist and at the time of presentation of the Matrimonial Suit, had been working in the Calcutta Municipal Corporation in its Head office and was attached to the Personnel Department.

c) The appellant, in order to live and lead a happy matrimonial life, built a house with his own money by taking loan from the Government of West Bengal sometime in the year 1992, the address of which is described in the cause-title of the application. The respondent, although was an earning member of the family of the appellant, never contributed a single farthing in the family except paying salary of the two part-time maids. She never contributed a single copper towards the construction of the building. She had her bank accounts but never kept the pass-books in the matrimonial home. The respondent had shown a little interest in the matter of upbringing the child in a decent manner. At least thrice in a week, she used to go to her mother’s house at Sobha Bazar without making arrangement for the appellant’s basic and minimum requirement of food, cooking and tiffin etc. and the appellant had to arrange those of his own and there were occasions, when the husband had to go to his office without food and took lunch in a hotel in his office-locality.

d) The respondent is a peculiar type of woman and used to return to the matrimonial home from her office always at about 9/9.30 P.M. and if the appellant enquired of the reasons for coming so late, the respondent used to shout at the top of her voice and in the process, the appellant was put to embarrassment and was lowered in the estimation of the neighbours.

e) On or about June 20, 1996 the respondent went to Thakurpukur Police Station and gave a statement that the appellant died early in the morning by taking overdose of sleeping pill. The police rushed to investigate the matter and were deceived and they left the place after rebuking the respondent.

f) The respondent was a nagging lady and persuaded the appellant to transfer the house property in her favour and the appellant, to pacify her illegal demand, tried to explain that since he had taken loan to construct the building, he would not be in a position to make any conveyance in her favour as the property remained mortgaged with his employer. The respondent not being a lady of good understanding or amenable to reasons, became furious over the matter and filed a complaint under Section 498A of the Indian Penal Code and also started other criminal cases against the appellant.

g) For the initiation of the proceeding under Section 498A of the Indian Penal Code, the appellant suffered tremendous mental agony, worries and anxieties, particularly, due to the fact that the appellant was a government servant. However, the appellant was fortunately enlarged on bail. Simultaneously with the filing of the charge-sheet, the appellant in that behalf had also to move this High Court and in the process spoiled much of his time and energy and the financial involvement in that regard was also to a huge extent.

h) The respondent also filed case under Section 94 of the Criminal Procedure Code and with the help of search warrant, she took away everything from the house of the appellant including the articles belonging to the appellant. The resultant effect of the said incident was that the appellant had no utensils to cook. The respondent was so rude and vindictive that she took all the bedsheets, pillows etc. and the appellant had to sleep on the floor for quite a few days. Subsequently, the appellant on production of vouchers could recover 3/4 items out of the seized articles.

i) The appellant not only bore all the educational expenses of the child but also paid the expenses for the chartered car and that of crèche and provided tiffin and other snacks when the occasion permitted. The respondent created all sorts of problem in school and crèche while the appellant went there to visit the child. She even issued letter to the school, crèche and the police station to stall such visit.

j) There was no justification on the part of the respondent to withdraw herself from the society of the appellant.

k) The respondent poured venom into the ears of the son and whatever tiffin, food, snacks, etc. were offered by the appellant, she cautioned the son that he should not consume those. The respondent created problem when the appellant went to visit the crèche to take information about the son. She started shouting and hearing her shout, the local people assembled there, although, they all showed sympathy to the son and the appellant. The respondent had also the habit of writing letters to the headmistress of the school asking her not to allow the appellant to talk and visit the child after school is over or at tiffin hours.

l) In the event the respondent resisted the relief of restitution of conjugal right, the appellant should be entitled to get a decree of divorce on the ground of cruelty mentioned in the application.

The suit was contested by the respondent by filing written statement thereby denying the material allegations made in the plaint and the specific case made out by the respondent in her written statement may be summarized thus:

a) The appellant never wanted to live and lead a happy matrimonial life but he wanted to keep the respondent as a maidservant of the house and used to constantly beat her. She was ultimately driven out from the matrimonial home.

b) The appellant has venereal diseases and used to mix with different women and even did not spare a maidservant. The respondent was driven out of the matrimonial home just for creation of obstruction in the adulterous relation of the appellant with a maidservant in the presence of the child which the respondent vehemently opposed. The respondent did not permit such type of adulterous relation within the knowledge of her only son.

c) The appellant used to reside in a colony-house and had taken huge sum of money from the mother of the respondent. Even the first matrimonial home was provided in a rented house for which the entire advance money and all other expenses had been borne out by the mother of the respondent. The respondent provided huge sum of money from her mother for building the house and she was compelled to pay her entire salary in the hand of the appellant.

d) The appellant used to snatch the entire salary from the respondent and in consequence thereof, she used to live like beggar and last of all, at the time of being driven out from the matrimonial house, she was penniless and faced immense trouble. If the cost of construction of the building was assessed by an Engineer, from such assessment, the real expenses of the construction of the house would come out and from the said assessment, it would be clear whether the same was built up out of loan amount or whether there was any contribution by the respondent.

e) The appellant had different sources of money and had got ability to make and create money from his office and acquired huge sum of illegal amount which was utilised to meet the cost of his bad habits. The appellant made arrangement for the respondent to leave her matrimonial house every week so that the appellant could take the chance of bringing women during her absence.

f) It was absolutely false that the respondent used to come back at about 9/9.30 P.M. or that she ever raised her voice at the top.

g) After being tortured and injured, the respondent was compelled to complain to the police station, as a result, the police started a case under Section 498A of the Indian Penal Code. The appellant on several occasions attempted to murder the respondent by a chopper (Bonti). The appellant is in the habit of mixing with number of women and most of the days, he used to return at the late night and when the respondent asked for explanation, she was seriously beaten.

h) The appellant was not satisfied with the company of his wife but always intended to attach himself with other women. He had illegal relation with a schoolmistress, maidservants and had contacted various venereal diseases. The respondent would file an application before the learned Trial Court to check up the appellant whether he had been affected by any venereal disease.

At the time of hearing of the suit, the appellant alone gave evidence while the respondent also was the sole witness opposing the application.

The learned Trial Judge by the judgment and decree impugned herein gave a decree for restitution of conjugal rights on the ground that the wife was willing to go back. The learned Trial Judge, however, did not consider the question of cruelty, as according to him, the main relief having been granted, no question of giving alternative relief arose. The learned Trial Judge pointed out that although various allegations of cruelty were made, the application for divorce was not amended to include those facts as ground of divorce.

Being dissatisfied the husband has come up with the present first appeal. Mr. Roy, the learned advocate appearing on behalf of the appellant, vehemently contended before us that the learned Trial Judge refused to exercise jurisdiction vested in him by law by not considering the question of grant of relief of divorce on the ground of cruelty. Mr. Roy submitted that his client prayed for restitution of conjugal rights only to give a chance to the wife with specific averment that if such prayer was opposed by the respondent, he would pray for divorce. Mr. Roy submits that in fact, his client, in evidence specifically prayed for the relief of divorce as the wife did not accept the suggestion of restitution of conjugal right as would appear from the fact that the reconciliation failed.

Mr. Roy submits that although the learned Trial Judge has not considered the question of cruelty, this Court should on the basis of evidence on record consider the question whether the activities on the part of the respondent amounted to cruelty.

Mr. Roy next submits that the respondent in her written statement having made specific allegations against the husband imputing his moral character and has even made allegations that his client was suffering from venereal diseases, but having failed to substantiate such allegations by leading any evidence, the Court should on such ground alone pass a decree for divorce on the ground of cruelty. Mr. Roy submits that unfounded allegations involving moral character made in the written statement enables the Court to pass a decree for divorce on the ground of cruelty. He, therefore, prays for decree of divorce instead of that of restitution of conjugal rights granted by the learned Trial Court.

Mr. Debnath, the learned advocate appearing on behalf of the respondent, has opposed the aforesaid contentions of Mr. Roy and has contended that the present appeal is not maintainable in view of the fact that the main relief contained in the application was granted by the learned Trial Judge. According to Mr. Debnath, if the main relief is granted, the plaintiff cannot be aggrieved in anyway and cannot prefer any appeal for claiming the alternative relief by abandoning the main relief.

Even on merit, Mr. Debnath submits that the plaintiff having failed to prove the allegations of cruelty made out in the plaint by adducing any corroborative evidence, there is no just ground of granting a decree for divorce on the ground of cruelty. According to Mr. Debnath, if the plaintiff failed to prove his case made out in the plaint, he cannot get a decree on the ground that the respondent had failed to prove the allegations made in the written statement. Mr. Debnath further contends that in this case the main ground of cruelty alleged in the plaint being that his client had initiated a proceeding under Section 498A of the Indian Penal Code, so long that proceeding is not disposed of, it cannot be ascertained whether the allegations levelled against the husband was baseless or not. Therefore, Mr. Debnath continues, in the present appeal, there is no scope of granting any decree of divorce on the ground of initiation of a proceeding under Section 498A of the Indian Penal Code.

Mr. Debnath further submits that the moment his client got back all the articles through the help of police by issue of search warrant, she did not proceed with the other criminal proceeding initiated under Section 406 of the Indian Penal Code. According to him, for mere initiation of the other proceeding under Section 406 of the Indian Penal Code no decree for divorce can be granted. He, therefore, prays for dismissal of the appeal.

Therefore, the first question that arises for determination in this appeal is whether the main relief prayed for in the suit having been granted, the plaintiff- husband was entitled to get a decree for divorce on the ground of cruelty which was taken by way of alternative relief.

As indicated above, in the plaint, the husband first prayed for a decree of restitution of conjugal right with the rider that if the wife opposed the prayer, he should be granted a decree for divorce on the ground of cruelty on the basis of allegations already made in the plaint. The wife has specifically opposed all the prayers contained in the plaint and has in her written statement not only denied those allegations but also defended her action and at the same time, made serious allegations against the husband regarding his moral character indicating that he was maintaining adulterous relation with various ladies including the maidservants and had gone to the extent of making allegation that the husband was suffering from venereal diseases and maintained such stance even at the time of trial by appearing as a witness. The learned Trial Judge, as it appears from the judgement impugned, recorded that the husband did not deny such fact in his examination-in-chief or by giving suggestion to the D.W.-1 in her cross- examination. Such finding is a perverse finding of fact inasmuch as the husband in his examination-in-chief specifically denied those facts (See pages 49-50 of the paper book) and at the same time, gave specific suggestion to the D.W.-1 that those allegations were false (See pages 83-84 of the paper book).

The learned Trial Judge after recording the submissions of the learned counsel for the parties held that as the wife had not opposed the prayer of restitution of conjugal right and was willing to go back to the house of the plaintiff, he was inclined to pass the decree for restitution of conjugal right and found no necessity to enter into the question of cruelty as, according to him, the main relief claimed in the suit had been granted. According to the learned Trial Judge, in spite of the various allegations made in the written statement against the husband involving moral character, the husband not having amended the plaint by specifically praying for the relief of divorce on those allegations, those allegations cannot be considered in this proceeding particularly when the court granted the decree for restitution of conjugal right.

In our opinion, the aforesaid reason assigned by the learned Trial Judge is not in conformity with the law of the land for the following reasons:

First, in this case, the first prayer for restitution of conjugal right was subject to the condition that the wife would not oppose the said prayer. In this case, in the written statement the wife did not plead that she accepted the fact that without just cause she left the husband’s house but on the contrary, justified her action and in addition to those pleas, made allegations involving moral character of the husband. There is even no plea in the written statement that in spite of cruel behaviour of the husband she was willing to return. The fact that the endeavour of the learned Trial Judge for reconciliation failed indicated that even at that stage, she was not willing to return. Therefore, the parties went on trial on contested hearing even for the purpose of granting the relief of restitution of conjugal right. The moment such contested trial started, it should be presumed that the defendant was opposing even the first prayer of restitution of conjugal right by maintaining that due to cruel behaviour of the husband she was entitled to live separately and such prayer being conditional, the plaintiff without further amendment of plaint was entitled to press the issue of cruelty as a ground of divorce. If she was really willing to go back without opposing the prayer of restitution of conjugal right, there was no occasion for filing written statement opposing the prayer of restitution of conjugal right and contesting the suit by giving evidence. After contesting the suit and leading evidence disputing the allegations and making counter-allegations, if the wife offers to return for the sake of “welfare of the son” such plea must be held to be a pretended concession for the purpose of frustrating the relief of divorce even after committing cruelty. As pointed out by the Apex Court in the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate reported in AIR 2003 SC 2462, if a defendant after making false allegation against the other spouse withdraws such allegations by making amendment of the written statement, such withdrawal of the allegation will not absolve the defendant of his liability which he has already incurred by making false allegation and on that ground the Court can grant a decree for divorce.

Secondly, in a matrimonial suit, even if the plaintiff is unable to prove the allegations of cruelty pleaded in the plaint, a Court is entitled to grant a decree for divorce if it appears that the defendant in the written statement has made unfounded allegations of bad moral character of the plaintiff which are proved to be baseless and for that reason, the plaint is not required to be amended incorporating an assertion that those allegations are baseless.

Therefore, the learned Trial Judge refused to exercise jurisdiction vested in him by law by not considering whether the plaintiff had established cruelty from the materials on record to enable him to get a decree for divorce.

Since all the materials are available on record and the proceedings are pending for a longtime, we have, in exercise of power conferred under Order XLI Rule 24 of the Code of Civil Procedure, decided to consider such question and accordingly, we invited the learned counsel for the parties to argue on the question whether the husband on the basis of materials on record is entitled to get a decree for divorce on the ground of cruelty.

After hearing the learned counsel for the parties and after going through the materials on record, we find that the wife has undisputedly initiated two criminal proceedings, one under Section 498A of the Indian Penal Code and the other, under Section 406 of the Indian penal Code. The proceedings under Section 498A is still pending while the other one has been dismissed as the wife did not take any further step in the matter. In her defence, the wife has alleged that the husband took money from her mother and used to force her to pay her salary while the husband has totally denied such allegations. The wife has admitted that she lodged several diaries before the police station and also told the members of the local club alleging the torture of the husband. She has further stated that due to physical torture of the husband she was injured and such injury was treated by a doctor and due to such injury she could not attend her office. The husband, on the other hand, stated that the wife never paid any amount except the salary of two maidservants and although she had bank accounts, she never kept those pass books in the matrimonial home. The wife in this case has not examined any of the club people to whom she reported the incident of physical assault nor did she examine the doctor who allegedly treated her. She even did not examine her mother in support her allegations that huge amount of money was paid to her husband by her mother to purchase the peace in the family. She even by producing her bank accounts could easily substantiate her defence showing the monthly withdrawal of money from the accounts. She refused to produce materials showing that she really took leave from her office due to physical assault on her on the basis of the medical certificate of the doctor.

In her written statement, she alleged adultery against her husband and pressed the same in evidence. Such fact has been denied by the husband. She in her written statement alleged that the husband was suffering from venereal diseases and that she would apply for examination of the husband by a doctor. The husband in her examination-in-chief denied such fact and thereafter, the wife did not utter anything about such allegation in her examination-in-chief and also did not pray for medical examination of the husband.

From the aforesaid facts it is clear that the wife in spite of making serious allegations against the husband involving moral character did not even try to prove such fact by bringing the witnesses who could throw light on the veracity of the allegations. We are quite alive to the position of law that mere inability on the part of the defendant to prove the allegations contained in the written statement does not authorise the matrimonial court to pass a decree for divorce on the ground that those allegations were baseless; but if the defendant, in spite of availability of the competent witnesses to lend support to the allegations, decides not to examine them without just cause, the Court is entitled to presume that those allegations were baseless by drawing adverse presumption for not producing the best evidence available to her.

In this case, in spite of full knowledge that the husband is a government servant, the wife made complaint under Sections 498A and 406 of the Indian Penal Code and the husband was compelled to take bail. It appears that the wife did not proceed with the case under Section 406 of the Indian Penal Code and the same was dismissed. But for filing of such criminal case, the plaintiff was harassed. Similarly, there is no sufficient reason assigned by the wife demonstrating why she would not bring any corroborative evidence of physical torture when she was treated by a doctor and she told such incident to the local club members. Similarly, she could easily by production of her bank accounts, indicate her monthly withdrawal and thus, falsify the claim of the husband that she only used to pay the salary of the two maidservants. No body from her paternal side has come forward to support her case of demand of dowry and harassment alleged against the husband and payment of Rs.50,000/- by her mother could be easily proved by production of passbook of the bank. She although asserted in her written statement that she would apply for medical examination of the husband showing presence of venereal diseases, after the denial of such fact by the husband in his examination-in-chief she forgot to take such step.

All the aforesaid facts prove that the husband has not only proved the ground of divorce pleaded in the petition of divorce but at the same time, for making false and baseless allegations in the written statement against the husband, it is a fit case to grant a decree for divorce.

In the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate, referred to earlier, the Supreme Court held that the act of levelling disgusting accusations of unchastity and indecent familiarity with a person outside the wedlock and allegations of extramarital relationship constituted grave assault on the character, honour, reputation, status as well as the health of other spouse. Such aspersions of perfidiousness attributed to the other spouse viewed in the context of an educated Indian person and justified by the Indian conditions and standards, would amount to a worst form of insult and cruelty which is sufficient by itself to substantiate cruelty in law, warranting the claim of a party being granted divorce.

The learned Trial Judge, thus, erred in law in passing a decree of restitution of conjugal right in the facts of the present case by refusing to exercise jurisdiction vested in him by law on the erroneous idea that the main relief having been granted there was no scope of granting the decree of divorce.

We, therefore, allow this appeal by setting aside the judgement and decree passed by the learned Trial Judge and grant a decree for divorce on the ground of cruelty.

Since the only son of the parties is living in the custody of the wife we do not propose to disturb such custody. However, the husband is directed to pay the maintenance of the said son at the same rate at which he is presently paying by virtue of the interim order passed in this appeal, however, on condition that the son should come and stay with the father for a day in every week. If the son refuses to keep relation with the father by staying with him for a day in every week, in that event, no maintenance should be paid as he has attained majority and his mother is quite capable of maintaining him.

In the facts and circumstances, there will be, however, no order as to costs.

(Bhaskar Bhattacharya, J.) I agree.

(Rudrendra Nath Banerjee, J.)

Short link http://wp.me/p7s7-282

 

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS DOT NIC DOT IN SITE
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Filing false 498a, taking away children illegaly, interfering with their education is ALL cruelty. Divorce granted 2 hubby, Cal HC

Filing false 498a, taking away children illegally, interfering with their education is ALL cruelty. EVEN if wife’s stmt not cross examined, it need NOT be accepted in total! Divorce granted 2 husband on grounds of cruelty

Wife files 498a. After compromise, parties get back / live together. Still wife does NOT withdraw / quash criminal complaint ! So parties ultimately separate. However wife raises a false claim of living with husband many months after 498a (i.e.) AS IF her conduct was condoned by the husband ! Husband applies for divorce. Initially it is refused believing wife’s false statements that her cruelty was condoned by husband. On review, Cal HC appreciates the facts and orders divorce 

The Honourable court says that a 498a instituted and kept alive on false allegations in itself amounts to cruelty “….the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband….”

The wife at one point tries to escape sayin “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.” But the Hon HC refuses to accept that contention as she has affirmed her complaints in MANY other places

The court notices that she is blowing hot and cold in many places

The court observes that “There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) …”

The court also takes the interference with the education of children seriously “….. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.….”

so the court concludes “…he totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. ….”

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Calcutta High Court
Pranab Kumar Chakraborty vs Kumkum Chakraborty on 5 July, 2005
Equivalent citations: (2006) 1 CALLT 210 HC, 2005 (4) CHN 146
Bench: D K Seth, J Banerjee

JUDGMENT

1. The appellant has filed this application for review of the judgment and decree dated 25* of April, 2003 in FA No. 12 of 2001. Mr. Dasgupta in support of the review application had contended that the Court had overlooked the materials apparent on the face of the record to the extent that the wife had made false and wild disparaging allegations against the spouse, which amounts to cruelty. In support, he relied on Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003(6) SCC 334. He then points out that the learned Court in the judgment had disbelieved the evidence of the appellant/ husband and believed that of the wife on the ground that there was no cross-examination on certain points. Mr. Dasgupta contended that absence of cross-examination does not mean that the evidence was unchallenged. To support this contention, he relied on the decisions in Juwarsingh s/o Bheraji and Ors. v. State of Madhya Pradesh, 1980 (Supp) SCC 417 and P. Ram Reddy and Ors. v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Ors., . Thus the finding arrived at suffers from errors apparent on the face of the record. He next contended with regard to the question of cohabitation, particularly, at page 7 of the judgment under review and drew our attention that the evidence itself was unreliable and as such the absence of cross-examination would not matter. Inasmuch as Mr. Dasgupta pointed out that the wife admitted of not living in the same room and cohabitation was alleged four months after the filing of the suit. It is the probability of the evidence and the credibility of the witness, which are to be considered not the absence of cross-examination. Even in the absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. On the question of review, Mr. Dasgupta relied on the decisions in Green View Tea & Industries v. Collector, Golaghat, Assam and Anr., 2004(4) SCC 112 (para-14); Srinivasiah v. Balaji Krishna Hardware Stores, ; Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors., AIR 1954 SC 526 and Benoy Krishna Rohatgi and Ors. v. Surajbali Misra and Anr., , in order to support his contention that this is a case fit for review. Mr. Dasgupta drew our attention to the various materials on record to substantiate his contention. Virtually he had reargued the whole appeal.

2. Mr. Haradhan Banerjee, learned Counsel for the respondent/opposite party, on the other hand, took a preliminary objection that the review does not lie if the decision is erroneous. According to him, when two views are possible, acceptance of one view cannot be a ground for review. The judgment proceeds on the basis of the question of belief and disbelief, which can never form the subject-matter of review. On the question of cohabitation, he drew our attention to pages 8 to 10 of the judgment under review. Mr. Banerjee then contends that the filing of the case under Section 498A of the Indian Penal Code (IPC) would not amount to cruelty since the cruelty stands condoned unless the allegations are renewed or repeated. Mr. Banerjee, however, distinguishes the decision in Moran Mar Basselios Catholicos (supra) on the ground that in the said decision, the question was not attended; whereas in the present case the question was adverted to. He drew our attention to page 17 of the said judgment. He further points out that the cohabitation had revived the matrimonial relation and amounts to condonation. He relied on Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary, , to enunciate the ground when the matrimonial offence can be revived. Relying on this decision, he contended that in this case there was no material to show that the matrimonial offence was revived to attract the principles of cruelty on account of pendency or survival of the proceedings under Section 498A IPC. He also relied, for the same proposition, on the decision in Parison Devi and Ors. v. Sumitri Devi and Ors., . He then contended that there is nothing to indicate that what documentary evidence was not considered. On this ground Mr. Banerjee submits that the review application should be dismissed.

3. We have occasion to hear the matter for days together. Both the learned Counsel continued to elaborate their submissions from various angles. The matter was hotly contested. Both the learned Counsel had referred to the pleadings and the evidence as well as exhibits in relation to the merit of the case. In the process of the elaborate argument, both the learned Counsel had argued the whole appeal in order to substantiate the case for review. Both the learned Counsel suggested that they may be permitted to argue on both the counts and the Court may pass a composite order, namely an order disposing of the review application and in case the review is allowed to dispose of the appeal upon re-hearing in the same process. Accordingly, both the Counsel had addressed the Court. Having regard to the submissions made by the learned Counsel as above, we agreed to the suggestion and heard the application for review and the appeal simultaneously. In these circumstances, by consent of parties, we propose to dispose of the review application along with the appeal.

4. In Green View Tea & Industries (supra), the Apex Court had held that it is permissible to review a judgment if there are mistakes apparent on the face of the record, quoting from the decision in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, at page 630 (para-36) that “It is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were based on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. An act of Court should prejudice none. ‘Of all these things respecting which learned men dispute’, said Cicero, ‘there is none more important than clearly to understand that we are born for justice and that right is founded not in opinion but in nature’. This very idea was echoed by James Madison (The Federalist, No. 51. p. 352). He said : ‘Justice is the end of Government. It is the end of the civil society, It ever has been and ever will be pursued, until it be obtained or until liberty be lost in the pursuit.’ In Srinivasiah (supra), it was held that an assumption that appears to be incorrect on the basis of the materials would be a sufficient ground for entertaining review.

5. The principle of review is settled proposition of law. It does not require elicitation of any principle or decision. Now, therefore, we may examine the ground agitated by Mr. Dasgupta. On the face of the record, it appears that the wife had initiated a proceeding under Section 498A read with Section 342 of the Indian Penal Code (IPC) being Complaint Case No. 1628 C/1991 (Ext. 10 – II) before the learned Chief Judicial Magistrate, Howrah. The husband filed a criminal revision case being Criminal Revision Case No. 403 of 1992 before this High Court for quashing the said proceeding under Section 498A IPC. At the intervention of the lawyers of the parties, the wife was brought back on the assurance that she would withdraw the criminal case under Section 498A IPC. It is not in dispute that the said proceeding under Section 498A IPC has not been withdrawn by the wife and has since been kept pending, though, however, the wife did not take any further steps in the said proceedings. This fact admittedly is on record and was not considered by this Court in the judgment and order under review. This ground would be sufficient to review the order if it is held that the failure of withdrawal of this complaint under Section 498A IPC would amount to cruelty.

6. Since the wife did not take any further steps, it seems and may be presumed that the allegations made against her husband were false. The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate (supra). The allegation under Section 498A IPC against a spouse is disgusting accusation. In the said decision, it was held that subsequent deletion or amendment of the pleadings would not absolve from treating the wife by the husband with cruelty by making earlier injurious reproaches and statements. The impact whereof continued to remain on record, as in the present case where the allegations are still on record and have not been withdrawn, though not proceeded with. This making of false allegation in itself is a cruelty and then the cruelty is further fueled by reason of keeping the allegations under Section 498A IPC alive and surviving despite having agreed to withdraw the same, by reason of non-withdrawal thereof till date.

7. Admittedly, the judgment under review had proceeded to believe the evidence of the wife on account of absence of cross-examination on the question of cohabitation. Absence of cross-examination does not mean that the evidence is unchallenged. In Juwarsingh (supra), the Apex Court had held that the cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to proved facts, their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable. Courts are not bound to accept the testimony merely because there was no cross-examination. Similar view was taken in P. Ram Reddy (supra) where it was held that the Court is not bound to accept the statement of a witness simply because there was no cross-examination of that witness. The truth of the evidence is to be tested on the basis of the probabilities and reliability. In the present case, there is evidence to show that the husband and wife were not residing in the same room since before institution of the suit. The allegation of cohabitation bears a date four months after the institution of the suit. This seems to be against all probabilities where the husband and wife are locked in the legal battle for the custody of the children and have been residing separately since before institution of the suit. This seems to be against all probabilities, which appears to have been overlooked. Our attention was drawn to the various contradictions and inconsistencies in the deposition of the wife affecting the credibility of the witness and reliability of the evidence given by her.

8. Even if we may not give credence to the question of cohabitation, but the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband. This is a ground sufficient to allow the review application.

9. It is true, as contended by Mr. Banerjee that an erroneous decision cannot be reviewed; when two views are possible, acceptance of one view cannot be revised; question of belief and disbelief cannot be intervened in a review. In this case the decision may be erroneous. But this erroneous decision was based on an error apparent on the face of the record in considering the existence of the question of cruelty on account of survival of the complaint under Section 498A IPC. The question of condonation of cruelty as contended by Mr. Banerjee does not find any support from the materials on record that the husband had ever condoned the cruelty. As soon the suit is filed on the ground of cruelty, there is no question of condonation of cruelty. The very pendency and survival of the complaint case under Section 498A IPC till the decision under review itself is a cruelty surviving which need no revival by fresh complaint or otherwise. Despite being agreed but the same having not been withdrawn, the wife’s failure to withdraw the same itself revives the cruelty continuous until withdrawn. It is admitted that this complaint has not been withdrawn till today. Therefore, the principle of condonation of cruelty as was sought to be urged by Mr. Banerjee does not find any support from the materials on record. Therefore, the decision laid down in Krishna Sarbadhikary (supra) cited by Mr. Banerjee has no manner of application in the present case.  http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

http://fromvinayak.blogspot.com

  1. Thus, we find that the omission to consider the impact of the survival of the proceedings under Section 498A IPC supporting the ground of cruelty had escaped our notice and that on the question of cohabitation, there were certain cross-examinations and that the evidence of the wife could not be sustained on its own strength and that the husband had repudiated in his evidence and the suggestions of the alleged cohabitation. These are definitely errors or mistakes apparent on the face of the record and are sufficient grounds to review the judgment.11. The facts apparent from record, viz. that the marriage has irretrievably broken and cannot be bridged between the parties and that the parties did not and cannot live together and that there is existence of cruelty on account of survival and/or pendency of the case under Section 498A IPC, having escaped our notice, are sufficient for allowing this application for review.

    Order:

    12. Accordingly, the application for review succeeds and is allowed, the judgment and decree passed by this Court, sought to be reviewed in this review application, is hereby set aside. The application for review is, thus, allowed. The appeal is restored to its original file and number and be re-heard.

    FA No. 12 of 2001

    13. By consent of parties, we have re-heard the appeal simultaneously with the hearing of the application of review of the judgment and decree. Both the learned Counsel argued the case elaborately and in detail and took us through the materials on record. After having re-heard the appeal by treating the same, by consent of parties as on the list for hearing of the appeal, now we propose to decide the appeal in the manner following.

    14. Exhibit 10 is the complaint lodged by the wife against the husband before the Court of the learned Chief Judicial Magistrate, Howrah being Complaint Case No. 1628 C/1991. In the said complaint, the wife as complainant alleged that the husband/accused:

    started to neglect your complainant and also started torturing both physically and mentally during her stay at the house of the accused.

    3. That the accused used to take wine regularly and almost everyday being intoxicated the accused tortured the complainant both physically and mentally and became a regular incident. The accused even has illegal relation with other ladies and used to meet other ladies frequently and without any hesitation.

    4. That the brothers of the accused person are also of the same nature of the accused and also torture your complainant both physically and mentally and with the connivance of the accused the brothers of the accused tried to outrage the modesty of the complainant by force and if your complainant told anything about such behaviour of the brothers of the accused the accused used to reply to bear the matter.

    5. That in spite of such torture both physical and mental your petitioner stayed with the accused and two children namely 1. Kumari Bidisha Chakrahorty, 2. Sri Humpi Chakraborty born out of (in) the said wedlock.

    6. That your complainant tried her level best to stay at the house of the accused but such tortyre became higher and higher and the accused and his brothers almost regularly tortured your complainant both physically and mentally.

    7. The accused also refused and neglected to give the daily means and clothing to your complainant intentionally and willfully and the two children also never receive any love and affection from the accused person on the other hand the accused used to behave very rough and even merciless to the said two children.

    8. That in spite of such behaviour and torture of the accused and his other brothers, your complainant accommodated at the said house but when the torture of the accused and his brothers became intolerable by human being and also for the fear of life of your complainant and also for the safety, security and also for future of her two children your petitioner was compelled to leave the house of the accused person along with her two children on 4.10.91 and since then your complainant is residing at the house of her sister.

    9. That from the date when your complainant left the house of the accused neither came to see your complainant and her two children nor took any information till date.

    10. That suddenly on 4.12.91 the accused along with some persons who identified themselves as police persons came to the house of your complainant and have taken away the said two children of your complainant in a very rough and inhuman manner and your complainant informed the matter before Bally P.S. vide G.D. Entry No. 3 70 dl. 4.12.91.

    11. That thus the accused has committed offence under Section 498A and under Section 342 IPC” [PB-II, pp. 14-16]

  2.  

     

     

15. This allegation was supported by the wife in her examination-in-chief (PB-I, p. 135) namely “It is correct to say that in December, 1991,1 filed a case against my husband under Section 498A of IPC as my husband used to assault me very often.” In her cross-examination (PB-I, p. 138), she said “I admit herein that all statements made in my application under Section 498A IPC and also in my application for recovery of my children in Criminal Courts are all correct and true.” She further said in her cross-examination (PB-I, p. 139) that “I filed a case under Section 498A IPC against my husband for which any husband submitted an application in the High Court for quashing the said proceeding under Section 498A of IPC and that proceeding is still pending in the Hon’ble High Court. It is correct to say that there is in fact no petition of compromise of 498A IPC in between myself and my husband.” At page 141 (PB-I) in her cross-examination she stated, “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.”

16. It appears that these disparaging and disgusting allegations were made and were supported even at the time of examination-in-chief and cross-examination of the wife. Whereas at page 136 (PB-I) in her examination-in-chief, she said, “After compromise in the Hon’ble Court I look no account of the case under Section 498A of IPC pending in the Magistrate’s Court at Howrah” This complaint was filed in 6th December, 1991 whereas the wife had lodged a diary on 4th of October, 1991 (Ext. 17, PB-11, p. 37), wherein she informed that she had no complaint against anybody and she would not start any case against anybody. In her written statement, she admitted that the proceeding under Section 498A IPC was still pending for disposal (PB-I, p. 53) and that the said proceeding was initiated when the acts of cruelty was perpetrated against her (PB-I, p. 55) and denied that the allegations made in the application under Section 498A were false and the case was filed falsely; but, however, she admitted that the matter was pending before the Court (PB-I, P. 59).

17. Making of false allegations are apparent on the face of the record that she wanted to say that the allegations made in the application were designed by her lawyer in one breath and then says that all the allegations made in the said application are true and correct; but these allegations are yet to be proved. No evidence has been led to prove any of these allegations by the wife.

18. Thus, it appears to be a false allegation in relation to the character of the husband imputing that the husband had been torturing the wife and that the husband used to have illicit connection with other women. These disgusting and disparaging allegations are sufficient to constitute cruelty when not proved and this cruelty was maintained even till the date when the wife had given her evidence in the proceedings. She kept the proceedings pending and stood by her submissions made therein. She had never resiled from the allegation made against the husband in Exhibit 10 filed on 16th December, 1991. Thus, the cruelty emanating from the materials, as discussed above, does exist and is apparent from the record itself, which we omitted to consider in the earlier judgment. Admittedly, the allegations made therein are false because of the reason that she had never attempted to prove the same apart from the fact that in the said application, she had alleged that this torture and the illicit relation was continuing for long namely immediately after her marriage, ie: on 17th of June, 1982 in which one daughter and one son were born on 24th of July, 1983 and 20th February, 1988 respectively. Whereas a few days before 16th December, 1991, the date when the application under Section 498A IPC was filed, the wife lodged a diary on 4th of October, 1991 being Ext. 17 (PB-II, p. 37) wherein she did not whisper anything about those allegations, on the other hand, she said she had no complaint against anybody and she would not start any case against anybody.

19. Keeping of an application under Section 498A IPC pending against a person is like a Democles’s sword. The person would remain in constant fear of its being fallen on his head any time. This itself is a cruelty continuous.

20. There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) on 3rd of December, 1991 being Ext. 13 (PB-II, p. 26) wherefrom it appears that the wife used to leave the matrimonial home taking away the children with her even at the cost of the studies of the children and the husband had to persuade her to bring the children back. However, the husband ultimately got the daughter admitted in Mousuri (PB-I, p. 107) so as to ensure her uninterrupted education and that the husband had to rescue the children so as to continue their studies through proceedings under Section 97 Cr. PC. The taking away of the children and interference with their studies, an agony for a father, desiring his children to be educated properly, would also amount to cruelty. At page 139 (PB-I) she stated, “It is a fact that after my marriage and upto this day my husband assault me but I cannot remember the number of times. I did not state to my lawyer prior to preparation of the written statement that my husband had assaulted me. I lodged no diary in P.S. about the assault. I lodged a diary in P.S. while I left my matrimonial house with my children. I made no allegation against my husband and the members of his family in the said diary.” The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate, 2003(6) SCC 334 (supra), and followed and elaborately discussed in Kakali Das v. Ashish Kumar Das, AIR 2004 Cal 176 : 2004 (3) CHN 516.

21. Even if it is assumed that the cruelty of the wife arising out of the initiation of the proceedings under Section 498A IPC and the allegation made therein was condoned by reason of the alleged cohabitation either before or after the institution of the suit, even then the failure to withdraw the proceedings despite agreed to by the wife, the survival of the proceedings, and her assertion in the written statement that the said proceeding is still pending disposal (PB-I, p.59), the assertion of the wife in her deposition in cross-examination that the said proceedings against the husband is now alive (PB-I, p. 141) and her deposition asserting that the statements made in the application under Section 498A IPC (Ext. 10) are all correct and true (PB-I. p. 138), has the effect of revival, continuance and survival of the cruelty.

22. It may be noted that even before this Court an application was made by the father for ensuring the studies of the son when the daughter had been adequately educated keeping her outside in Boarding School and the daughter lives with the father and that ultimately the wife was persuaded to allow the son to be admitted in a Boarding School outside the State of West Bengal. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.

23. It is alleged that by reason of cohabitation the husband had condoned the act of cruelty on the part of the wife and all other grounds on which divorce was sought for. In our earlier judgment, we had held that in the absence of cross-examination on the question of cohabitation, the wife’s allegations were to be believed. But, now it is pointed out that in his deposition the husband had asserted (PB-I, p. 91) that he had no relationship with the wife since 1990 and that he used to live in a separate room. He reiterated that he lived in a separate room in his examination-in-chief (PB-I, p. 95) and that he did not maintain any relation with the wife since 1990 (PB-I, p. 96) and he did not condone the cruel behaviour of the wife (PB-I, p. 97). This he repeated at page 101 and maintained stood by in his cross-examination (PB-I, pp. 114, 118 & 121). On this question of cohabitation, the wife was cross-examined where she had stated (PB-I, p. 134) that ‘It is not a fact that I had no sexual relation with my husband since 1990.” She admitted that she left the matrimonial home on 4th of October, 1991 by saying (PB-I, p. 134) “It is correct to say that from 4.10.91,1 resided with my sister at Bally with my one son and one daughter.” and said that (PB-I, p. 136)” I have been living in my matrimonial house since 1.10.92″ She was also cross-examined on the question of co-habitation when she answered (PB-I, p. 137) that “It is a fact that my last cohabitation with husband was held on 1st week of January, 1995. At page 140 (PB-I), she stated in her cross-examination that “my husband does not reside in the house where I reside. Then says, I do not know as to where he resides. Not a fact that my husband did not live separately at any point of time in the premises where I reside in the same room.” From the evidence of the OPW-1, the wife, it appears that she blew hot and cold when she says in her cross-examination at page 142 (PB-I) that ‘Not a fact that I suspected and used to tell that he had illicit connection with another lady” and that her lawyer drafted the petition and designed the same according to his estimation under Section 498A (PB-I, p. 141) and that she had no allegation against her husband on 4th of October, 1991 recorded in the diary (PB-I, p. 139) while saying that the statements made in the application under Section 498A were all correct and true. She contradicts herself to loose the credibility of her evidence. The suit was filed on 29th of November, 1994, whereas the last cohabitation was alleged in January 1995, which is wholly improbable.

24. The totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. The credibility of the evidence does not depend on the absence of cross-examination, but on the credibility of the witness himself/ herself and the totality of the evidence on record. It was so held in the decisions in Juwarsingh, 1980 (Supp) SCC 417 (supra) and P. Ram Reddy, (supra). In the present case, however, there were some cross-examination and the wife admitted of not living in the same room and alleged cohabitation after fourth months of filing of the suit, it is the probability of the evidence, which has to be considered not the absence of cross-examination. Even absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. The truth of the evidence is to be tested on the basis of the probabilities and reliability and the credence of the respective witnesses, particularly, when two versions have been brought on record by the husband and the wife (PW-1 and the OPW-1). In the present case, the evidence of the wife seems to be against all probabilities. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

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At the same time, we have found that the parties are not residing together and had been living apart and the husband had left the matrimonial home. Even in course of hearing of the review application, the Court had attempted to resolve the dispute and requested the learned Counsel to bring about a settlement and ultimately to present the respective parties before the Court. The Court had attempted to settle the matter but the wife did not agree to reconcile though the husband expressed his willingness. The Court, found that the parties are living separately and are unable to resolve their dispute and that the marriage has broken down irretrievably and ultimately a settlement only with regard to education of the son and the maintenance and residence of the wife was arrived at by consent of the parties without any success in bridging the relation between them.

26. Thus, it appears that the ground of cruelty exists and the marriage between the parties has irretrievably broken and all our attempts to restore the same had failed. As such it is a case fit for passing a decree of divorce even on the ground of irretrievably breaking down the matrimony on the principle we had enunciated in the decision in Nityananda Karmi v. Kum Kum Karmi, 2003 (1) ICC 249 : 2003(1) WBLR (Cal) 348 : 2003(4) ILD 73 (Cal.): 2003 (2) CHN 121 (DB).

27. Since by consent of parties the main appeal of which the review is allowed was argued at length between the parties and have since re-heard, in view of the fact that the ground of cruelty having been proved as discussed above and the marriage has irretrievably been broken and all our attempts to bridge the relation having failed by reason of the disagreement between the parties, we hereby allow the appeal in FA No. 12 of 2001 and grant a decree of divorce on the ground of cruelty and the Matrimonial Suit No. 318 of 1994 of the Court of the learned Additional District Judge, 4th Court, Howrah stands decreed. The marriage between the parties be annulled. Let a decree of divorce be granted accordingly.

CAN 1120 of 2005. CAN 3079 of 2005.

28. The question of permanent alimony is hereby settled in terms of our order dated 3rd March, 2005 only with the modification that the husband shall arrange a proper flat in the locality of the matrimonial home sufficient for the residence of the wife since the husband submits that he does not have any share in the ancestral house. In addition to the maintenance, husband shall purchase a self-contained flat (at least with one bedroom with attached bath, one guestroom, drawing, dinning, kitchen, and common bath) in the locality sufficient to the requirement and status of the wife as close as possible to the ancestral home and shall fully furnish and make over the same to the wife within 6 (six) months from date and the wife shall be entitled to continue to reside in that flat till her life without any interruption from her husband or anyone else and she would continue to receive the permanent alimony in terms of the order dated 3rd of March, 2005 so long she survives in the same manner as provided therein.

Order:

29. In the result, the appeal stands allowed in terms of above. CAN 1120 of 2005 and CAN 3079 of 2005 are also disposed of accordingly. The judgment and decree appealed against is hereby set aside. The marriage between the parties stands annulled by a decree of divorce. Let there be a decree of divorce accordingly. The wife shall be entitled to residence and maintenance in terms of order dated 3rd March, 2005 subject to the modification as indicated in paragraph 28 above. The education of the son be governed in terms of the order dated 3rd March, 2005. The Matrimonial Suit No. 318 of 1994 of the 4th Court of Additional District Judge, Howrah is thus decreed.

30. There will, however, be no order as to costs.

31. Liberty to mention.

32. Urgent xerox certified copy of this judgment, if applied for, the same be supplied within seven days on usual terms.

 

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting

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Criminal case BEFORE marriage, criminal case AFTER marriage! Man & parents arrstd. Divorce by Bom HC

Live-in woman uses Dowry case b4 marriage, to rope in man, forcing him to marry her. She then promptly Files a IPC 498a (cruelty to wife case) after marriage again! Husband and parents are arrested !! She goes on appeal against husband’s divorce. Bom HC grants divorce to hubby. 

In this case a woman in a live in relationship files two criminal cases on a man (one under DP act stating that he demanded dowry and a second under sec 323, 504 and 506 of Indian Penal Code. She threatens the man to marry her, failing which she will prosecute him. The poor guy agrees to marry the woman and she also compromises and closes those cases !!

After becoming his wife, she again files 498A etc and has him and his parents arrested !! The man is acquitted in these 498A cases by the trial court and in two appeals one at sessions and one at the High court itself

The man files for Divorce and is granted divorce by the civil judge, but due to appeals the case finally lands at the Hon Bombay HC. The HC appreciates the fact that the woman has filed false cases and treated the man with cruelty. The Hon HC grants divorce to the man even though the trial court has NOT specifically mentioned that 498A filed by the woman is false 

Inter alia, the Hon HC notices that “…33. A perusal of the orders passed in the criminal proceedings clearly indicates that the appellant and his family members were arrested in view of the complaint filed by the respondent under section498-A read with 34 of IPC and were subsequently released on board. It further indicates that the appellant and his family members were not acquitted based of any benefit of doubt given to them but were acquitted on the ground that the complaints filed by the respondent was totally vague and the allegations therein were not proved. …’

and in the matter of the civil (divorce) case filed by the husband, the Hon HC states “… A perusal of the order passed by the lower appellant Court however, indicates that the lower appellate Court has taken a very casual approach by totally ignoring the effect of the order of acquittal passed by the Criminal Court….”

Appreciating the entire factual matrix, the Hon orders Divorce on grounds of cruelty !

 

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 634 OF 2013

 

Shri Mangesh Balkrushna Bhoir                   )

Age 37 yrs., Occupation : Business              )

R/at Dhansar, Tal. Palghar,                     )

Dist. Thane                                     )          ….Appellant

Versus….

Sau. Leena Mangesh Bhoir                     )

Age 35 yrs., Occupation :                       )

R/at Through Bhaskar Laxman Patil               )

Tembhi, Post Navapur, Tal. Palghar              )

Dist. Thane                                     )          ….Respondent

 

Ms.Seema Sarnaik i/b Mr.Raj Khude for the Appellant.

Mr.Y.R. Bhate with Mr.Kirankumar Phakade for the Respondent.

 

CORAM         :             R.D. DHANUKA, J.

RESERVED ON   :             5th DECEMBER, 2015.

PRONOUNCED ON :             23rd DECEMBER, 2015.

 

JUDGMENT :-

 

  1. By this second appeal, the appellant has impugned the order passed by the Lower Appellate Bench granting reliefs in favour of the respondent in the civil appeal filed by the respondent. The appellant was the original petitioner in Marriage Petition and the respondent herein was the original respondent in the Marriage Petition.
  2. On 15th June, 2002, the appellant was married to the respondent in Ganapati Temple, Manor. It was the case of the respondent wife that the appellant and the respondent were already staying together since 1996 and during the period between 1996 and 1999, the appellant had refused the proposal of the respondent to marry her. It was the case of the appellant that the respondent and her brother Mr.Jagdish Patil had come to the house of the appellant and given him Rs.10,000/- and asked him to marry with the respondent which the appellant had refused and had returned the said amount. The respondent filed a case (Regular Case No.203/1999) in Palghar Court under sections 3 and 4 of the Prevention of Dowry Prohibition Act against him.
  3. It was the case of the appellant that during the Navratri festival, when the appellant was doing lighting work, respondent abused the respondent in filthy language and filed a case bearing Summary Case No.584/01 under sections 323, 504 and 506 of Indian Penal Code.
  4. On 15th June, 2002, the appellant married with the respondent. It was the case of the appellant that though the appellant did not wish to marry the respondent, the respondent had pressurized the appellant that if the appellant did not marry with her, the appellant would be killed and if he would marry her, the respondent would withdraw both the criminal cases. It was the case of the appellant that in view of such pressure, the appellant had consented for the said marriage which was performed on 15th June, 2002 against his wish. On 12th July, 2002 the two criminal cases filed by the respondent were compromised and were withdrawn.
  5. On 31st May, 2004, the appellant had filed a complaint against the respondent with the Palghar Police Station. On 4 th June, 2004, the respondent filed complaint under sections 498-A read with section 34 of Indian Penal Code against the appellant, his parents and sisters. On 4th June, 2004, the local police station arrested the appellant, his parents and sisters and produced them before the concerned court for bail, the appellant, his parents and sisters were subsequently released on bail. It is the case of the appellant that since 4th June, 2004, the parties have been staying separately. There is no issue out of said wedlock. https://twitter.com/atmwithdickhttps://vinayak.wordpress.com/http://evinayak.tumblr.com/
  6. 6. On 19th July, 2005 the appellant herein filed a petition i.e. Marriage Petition No.52 of 2005 against the respondent wife inter alia praying for divorce on the ground of cruelty and on other grounds. During the pendency of the said marriage petition filed by the appellant herein, a complaint bearing RCC No.193 of 2004 filed by the respondent under section 498-A read with section 34 of Indian Penal Code came to be disposed of on 7th May, 2007.
  7. By the said order dated 7th May, 2007, the appellant, his parents and his sisters were acquitted for the offences under section 498-A read with section 34 of Indian Penal Code. The learned Judicial Magistrate, 1st Class held that the prosecution had failed to prove the offence in which the accused were charged.
  8. On 31st January, 2008 the learned Civil Judge, Senior Division, Palghar allowed the Marriage Petition No.52 of 2005 filed by the appellant herein against the respondent inter alia praying for decree of divorce. By the said order and judgment dated 31 st January, 2008, the learned Civil Judge Senior Division directed that the marriage solemnized between the appellant and the respondent dated 15th June, 2002 was dissolved by decree of divorce under the provisions of Section 13(1) (i-a) of the Hindu Marriage Act from the date of the said order and directed the appellant to pay permanent maintenance of Rs.2,000/- per month to the respondent from the date of the said petition.
  9. Though the appellant had prayed for divorce on various grounds, the learned Civil Judge, Senior Division allowed the said marriage petition only on the ground of cruelty. The said order and judgment of the learned Civil Judge, Senior Division was impugned by the respondent wife before the District Judge – 2, Palghar by filing Civil Appeal No.07 of 2008. During the pendency of the said appeal filed by the respondent wife in the Court of District Judge – 2, the appeal filed by the State of Maharashtra against the order passed by the Judicial Magistrate First Class (Criminal Case No.22 of 2007) in the Court of Additional Sessions Judge at Palghar came to be dismissed by an order and judgment dated 11th July, 2011. The respondent wife challenged the said order and judgment dated 11th July, 2011 passed by the learned District Judge by filing a Criminal Revision Application No.449 of 2011 in this court. The said criminal revision application filed by the respondent wife is dismissed by this court on 11th February, 2013. This court observed that the respondent wife had lodged two criminal prosecutions prior to marriage against the accused persons. The learned judge had considered that the complaints filed by the respondent wife were vague and without details and that the respondent herein was living separately from the accused persons.
  10. By an order and judgment dated 7th August, 2010 the learned District Judge-2, Palghar allowed the Civil Appeal No.07 of 2008 filed by the respondent wife and has set aside the judgment and decree passed by the learned Civil Judge, Senior Division, Palghar in Marriage Petition No.52 of 2005 dated 31st January,2008 and dismissed the marriage petition filed by the appellant herein. This judgment and decree passed by the learned District Judge – 2 allowing the appeal filed by the respondent wife and dismissing the marriage petition filed by the appellant is impugned by the appellant husband in Second Appeal No.634 of 2013.
  11. This court while admitting this Second Appeal No.634 of 2013 on 1st July, 2014 has formulated the following substantial questions of law :-

“Whether in the facts and circumstances, the appellate Court was right in reversing the decree passed by the trial Court for divorce on the ground of cruelty particularly when the proceedings under Section 498A against the appellant-husband has culminated into acquittal upto the last stage ?”

  1. Ms.Seema Sarnaik, learned counsel appearing for the appellant submits that in this case the respondent had not filed any application for restitution of conjugal rights. She had no intention to co-habit with the respondent. She pursued the complaint filed against the appellant, her parents and his sisters under section 498-A read with section 34 of Indian Penal Code to its logical end. She submits that the appellant, his parents and the sisters are acquitted in the criminal complaint filed by the respondent. The criminal court found that the prosecution had failed to prove the allegations made in the complaint. She submits that in the criminal proceedings, the  appellant, his parents and sisters were acquitted but not based on any benefit of doubt given to the appellant and his family members but on merits. She submits that the said order passed by the learned Magistrate, First Class has been confirmed by the learned Sessions Judge and thereafter by this court. It is held that filing of such false complaint under section 498-A read with section 34 of Indian Penal Code and confirmation of such criminal case against the appellant and his family members amounted to the cruelty against the appellant and his family members and thus such action on the part of the respondent wife amounted to cruelty on which ground the appellant was entitled to seek divorce under Section 13(1) (i-a) of the Hindu Marriage Act. She submits that in view of arrest of the appellant along with his family members by the police, there was mental trauma and harassment to the appellant and his family members which amounted to cruelty.
  2. Learned counsel for the appellant invited my attention to the findings rendered in the criminal proceedings in three orders passed therein and also the findings rendered by the learned Civil Judge, Senior Division in the Marriage Petition filed by the appellant. She submits that the learned Civil Judge, Senior Division had rightly held that the action on the part of the respondent in filing criminal complaint under section 498-A read with section 34 of Indian Penal Code amounted to cruelty. She submits that when the order was passed by the learned Civil Judge, Senior Division in the said Marriage Petition, the criminal appeal filed by the State of Maharashtra was pending.
  3. Learned counsel placed reliance on the judgment of Division Bench reported in 2014(4) Bom.C.R.456 and in particular  paragraphs 27, 29, 32 and 34 of the said judgment and would submit that if the acquittal is on the ground that the charge could not be substantiated and even if there is no finding recorded by the criminal court that the prosecution case was false, there can be a case of cruelty.
  4. Learned counsel for the appellant also placed reliance on the judgment of Supreme Court in case of Vishwanath Sitaram Agrawal vs. Sau. Sarla Vishwanath Agrawal, 2012 AIR (SC) 2586 and more particularly paragraphs 28, 29, 33 to 35 and would submit that the decision of acquittal against the appellant, his parents and other relatives in the proceeding filed under section 498A of Indian Penal Code were found incorrect and untruthful and such act on the part of the wife would create mental trauma in the mind of the husband.
  5. Learned counsel appearing for the appellant also placed reliance on the unreported judgment of this court delivered on 6th May, 2010 in case of Nagesh Dhanapp Chilkanti vs. Sau. Manisha Nagesh Chilkanti in Family Court Appeal No.158 of 2008, judgment of Supreme Court in case of K.Srinivas vs. K.Sunita, (2014) 16 SCC 34 in support of the submission that filing of the criminal complaint under section 498A of Indian Penal Code against the appellant and his family members which were found frivolous itself was amounted to cruelty by the respondent upon the appellant and on that ground itself appellant was entitled to seek divorce from the respondent.
  6. Mr.Bhate, learned counsel for the respondent on the other hand submits that the appellant and the respondent were already staying together between 1996 and 2002 as husband and wife. Since  the appellant had refused to marry the respondent in spite of the promise and staying with the respondent as husband, the respondent was compelled to file two complaints against the appellant i.e. one under the provisions of Dowry Prohibition Act and another for committing assault by the appellant on the respondent. He submits that the appellant never filed any proceeding for quashing of those two complaints filed by the respondent wife. Within one month from the date of marriage solemnized between the parties on 15 th June 2002, the respondent wife had withdrawn her complaints on 12 th July, 2002. https://twitter.com/atmwithdickhttps://vinayak.wordpress.com/http://evinayak.tumblr.com/
  7. It is submitted by the learned counsel that the appellant and the respondent were not staying separately but were staying in a separate room. He submits that though the marriage took place on 15th June, 2002, there was no complaint filed by either party against each other till June 2004. He invited my attention to the complaint filed by the appellant on 31st May, 2004 against the respondent alleging threats of the respondent to file complaint under section 498A of Indian Penal Code. He submits that since the appellant had thrown out respondent on 4th June, 2004, the respondent was compelled to file a complaint under section 498A read with section 34 of the Indian Penal Code against the appellant, his parents and sisters for the offences committed by them. He submits that since the respondent was staying with the appellant till 4th June, 2004, the stand of the appellant that the respondent had been staying separately since eight months prior to the date of filing complaint or during the period between 15th June, 2002 to 4th June, 2004 did not arise. He submits that the civil court has to decide the case on the basis of preponderance of the probability. Learned counsel placed reliance on section 23(1) (a) of the Hindu Marriage Act, 1955 and would submit  that the appellant had taken advantage of his wrong by staying with the respondent wife for a period of six years without marriage as a husband and who had committed offence under section 498A cannot be granted divorce in view of section 23(1)(a) of the Hindu Marriage Act, 1955.
  8. Insofar as judgment of this court reported in 2014(4) Bom.C.R. 456 relied upon by the learned counsel for the appellant is concerned, learned counsel appearing for the respondent made an attempt to distinguish the said judgment on the ground that the said judgment was decided on the basis of the facts stated therein which facts are totally different than the facts in this case.
  9. Learned counsel for the respondent placed reliance on the judgment of this court in case of Mrs.Deeplakshmi Sachin Zingade vs. Sachin Rameshrao Zingade, AIR 2010 Bombay 16 and in particular paragraph 16 and submits that this court has held that when the Domestic Violence Act permits the wife to approach the court in case of any cruelty on the part of the husband 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 such complaint is to be treated as an act of cruelty.
  10. Learned counsel for the respondent placed reliance on the judgment of Patna High Court in case of Bhola Kumar vs. Seema Devi @ Dolly, III (2015) DMC 437 (DB) (Patna) and in particular paragraph 16 and would submit that Patna High Court has taken a view that institution of criminal case by the wife against the respondent and family members will per se not constitute cruelty for the purpose of seeking divorce unless it is held by a Court of  competent jurisdiction that the said complaint/allegation was false and vexatious.
  11. Learned counsel for the respondent made an attempt to distinguish the judgment of Supreme Court in case of K.Srinivas vs. K.Sunita, (2014) 16 SCC 34 on the ground that the Supreme Court in the said judgment had rejected the contention of wife on the ground that the wife had not narrated the complete facts in the complaint. He submits that the facts before the Supreme Court in the said judgment were totally different and the said judgment is clearly distinguishable in the facts of this case.
  12. Ms.Sarnaik, learned counsel for the appellant in rejoinder submits that the appellant husband was compelled to file a complaint against the wife on 31st May, 2004 based on the apprehension that the wife would be initiating a false action under section 498A of the Indian Penal Code and was threatening the appellant and thus the said complaint was justified by the appellant. She submits that the judgments relied upon by the appellant are squarely applicable to the facts of this case and are binding on the parties and this court. It is submitted that the respondent cannot seek reliance upon section 23(1) (a) of the Hindu Marriage Act, 1955 on the ground that false complaints were filed by the wife against the appellant even before marriage was solemnized between the parties and in view of such false and frivolous complaint, the appellant was forced to marry her. She submits that it was the respondent who committed wrong and not the appellant and thus the said provisions under section 23(1) (a) of the Hindu Marriage Act, 1955 would assist the appellant and not the respondent. Learned counsel for the appellant distinguished the judgment of this court in case of Mrs.Deeplakshmi Sachin Zingade  (supra) relied upon by the respondent on the ground that the complaint in the present proceedings was not filed under the provisions of Domestic Violence Act but were filed under the provisions of section 498-A of the Indian Penal Code. The criminal complaint in the said proceedings were still pending whereas in this case, a criminal complaint filed at the instance of the respondent was dismissed with a finding that the prosecution could not prove the allegations made in the complaint. She submits that the said judgment would not apply to the facts of this case at all.
  13. Learned counsel for the appellant also distinguished the judgment of Patna High Court in case of Bhola Kumar (supra) relied upon by the learned counsel for the respondent on the ground that the criminal case in the said matter was pending adjudication before the criminal court of competent jurisdiction and thus the said judgment would not apply to the facts of this case.

REASONS AND CONCLUSIONS :-

  1. There is no dispute that the appellant and the respondent were staying together prior to 15th June, 2002. It was the case of the respondent wife that the appellant and the respondent were staying together since 1996 and during the period between 1996 and 1999, the appellant had refused the proposal of the respondent to marry her. It is also not in dispute that the respondent had filed a case (Regular Case No.209 of 1999) in Palghar Court under sections 3 and 4 of the Prevention of Dowry Act against the appellant. The respondent had also filed one more criminal case i.e. Criminal Case No.584 of 2001 under sections 323, 504 and 506 of the Indian Penal Code against the appellant during that period.
  2. It was the case of the appellant that though the appellant did not wish to marry the respondent, the respondent had pressurized the appellant that if the appellant did not marry her, the appellant would be killed and if he would marry her, the respondent would withdraw both the criminal cases against the appellant. The appellant had married the respondent on 15th June, 2002. It is not in dispute that on 12th July, 2002, both the criminal cases were compromised and were withdrawn.
  3. It was the case of the appellant that since 4 th June, 2004, the parties have been staying separately and there was no issue out of the said wed-lock.
  4. It was the case of the appellant that since the respondent had threatened the appellant of filing a complaint under section 498-A read with 34 of IPC, the appellant had filed a complaint against her on 31st May, 2004. On 4th June, 2004, the respondent filed a complaint under section 498-A read with 34 of IPC against the appellant, his parents and sisters. On 4th June, 2004, local police arrested the appellant, his parents and sisters who were subsequently released on bail.
  5. There is no dispute that during the pendency of the marriage petition filed by the appellant husband against the respondent, inter-alia praying for divorce on the ground of cruelty and other grounds, by an order dated 7th May, 2007 passed by the Criminal Court, the appellant and his family members were acquitted in the complaint bearing Regular Case No.193 of 2004 filed by the respondent. The learned trial Judge allowed Marriage Petition No.52 of 2005 under section 13(1)(i-a) of the Hindu Marriage Act, 1955 for  dissolution of marriage and by a decree of divorce on the ground that the respondent wife had committed cruelty upon the appellant.
  6. It is not in dispute that the appeal filed by the State Government against the order passed by the Judicial Magistrate First Class acquitting the appellant and his family embers in the Court of Additional Sessions Court, Palghar came to be dismissed by an order and judgment dated 11th July, 2011. Criminal Revision Application No.449 of 2011 filed by the respondent wife against the order passed by the Additional Sessions Judge also came to be dismissed by this Court on 11th February, 2013. This Court while dismissing the said criminal revision application has observed that the respondent wife has lodged these two criminal proceedings even prior to the date of marriage with the appellant against the appellant. The said order passed by this Court on 11th February, 2013 has not been impugned by the respondent wife and the said order has attained finality.
  7. A perusal of the three orders passed in the criminal proceedings filed against the appellant and his family members clearly indicates that the complaint filed by the respondent against the appellant and his family members has been rejected on merits. The appellant and his family members were not acquitted in the criminal proceedings on the basis of benefit of doubt given to the appellant and his family members. The order passed by the learned Magistrate First Class has been confirmed by the learned Additional Sessions Judge and thereafter by this Court. The learned trial Court in the criminal proceedings filed by the appellant had held that filing of such false case under sections 498-A read with 34 of IPC by the respondent against the appellant amounted to cruelty against the appellant and his family members and on that ground the appellant  was entitled to seek divorce.
  8. Insofar as the submission of learned counsel for the respondent that the appellant had not filed any proceedings for quashing of those two complaints filed by the respondent wife before the the appellant had married the respondent is concerned, a perusal of the record makes it clear that immediately upon the appellant marrying the respondent, the respondent had compromised both the criminal cases and had withdrawn those complaints. In my view, there is thus merit in the submission made by learned counsel for the appellant that the appellant was forced to marry the respondent in view of such criminal complaints filed against the appellant before such marriage and only because of the assurance by the respondent that those complaints would be withdrawn if the appellant would marry her, the appellant had married the respondent.
  9. A perusal of the orders passed in the criminal proceedings clearly indicates that the appellant and his family members were arrested in view of the complaint filed by the respondent under section498-A read with 34 of IPC and were subsequently released on board. It further indicates that the appellant and his family members were not acquitted based of any benefit of doubt given to them but were acquitted on the ground that the complaints filed by the respondent was totally vague and the allegations therein were not proved. The order passed by the learned Magistrate First Class, in the said complaint has attained finality in view of the order passed by the learned Additional Sessions Judge dismissing the appeal filed by the State of Maharashtra and by virtue of the order passed by this Court, dismissing the criminal revision application field by the respondent. It is thus clear that there was a mental trauma on the  appellant in view of such criminal complaint which was prosecuted by the respondent right up to this Court by taking it to its logical end. The respondent has been already staying separately for last 10 years. There was no separate application filed by the respondent for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955. In my view, the learned trial Court was thus right in holding that the respondent wife had committed cruelty upon the appellant and was right in grating a decree of divorce on that ground.
  10. A perusal of the order passed by the lower appellant Court however, indicates that the lower appellate Court has taken a very casual approach by totally ignoring the effect of the order of acquittal passed by the Criminal Court. When lower appellate Court had passed an order on 7th August, 2010, the learned Magistrate First Class had already dismissed the complaint filed by the prosecution under section 498-A read with 34 of IPC which acquitted the appellant and his family members.
  11. Both the parties have relied upon several judgments of the Supreme Court and this Court. The Supreme Court in case of K. Srinivas (supra) has held that it is beyond cavil that if a a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce. The Supreme Court in the said judgment held that the respondent wife had admitted in her cross- examination that she did not mention of the incidents on which her complaint was predicated, in her statement under section 161 of Cr.P.C. It was also not her case that she had actually narrated all those facts to the Investigating Officer but he had neglected to mention them. The Supreme Court accordingly held that it was clearly  indicative of the fact that the criminal complaint was contrived after thought. The Supreme Court took cognizance of the fact that though the High Court had been informed about the acquittal of the husband and his family members, the High Court had not concluded that complaint of the wife was knowingly and intentionally a false complaint, calculated to embarrass and incarcerate the appellant and seven members of his family. It is held that the High Court ought to have concluded that the said complaint was false complaint and that such conduct of the wife unquestionably constituted cruelty as postulated in section 13(1)(i-a) of the Hindu Marriage Act, 1955.
  12. The Division Bench of this Court in case of Nagesh Dhanapp Chilkanti vs. Sau.Manisha Nagesh Chilkanti (supra) had considered a similar case where the husband and his family members were acquitted in the complaint filed under section 498-A of IPC read with other provisions of IPC. The Division Bench of this Court has held that filing of false criminal cases against the husband and his family members would very much constitute mental cruelty. The Division Bench further held that the respondent wife was guilty of treating the husband with utmost mental cruelty by filing false criminal case which ultimately resulted in acquittal and thus the husband was entitled to a decree of divorce o the ground of cruelty. A perusal of the order passed by the learned Magistrate First Class in the criminal case filed by the prosecution based on the complaint filed by the respondent indicates that the said complaint has been rejected on merits and not on the ground that the prosecution had failed to prove the case beyond reasonable doubt. In my view, it was thus clear that the said complaint filed by the respondent wife against the appellant and his family members was a false complaint and was filed as and by way of after thought and with an intention to defame the  appellant and his family members.
  13. The Division Bench of this Court in case of Nitin Ramesh Dhiwar vs. Sou. Poopali Nitin Dhiwar (supra) has held that filing of a false criminal case itself amounts to cruelty within the meaning of section 13(1)(i-a) of the Hindu Marriage Act, 1955.
  14. The Division Bench of this Court in the judgment reported in 2014(4) B.C.R. 456 has held that in a given case depending upon the evidence on record, even if acquittal is on the ground that the charge could not be substantiated and even if there was no finding recorded by the Criminal Court that the prosecution’s case was false, there can be a case of cruelty. It depends on the manner in which the complaint was filed and prosecuted.
  15. The Supreme Court in case of Vishwanath Sitaram Agrawal vs. Sau.Sarla Vishwanath Agrawal, reported in AIR 2012 SC 2586 has after considering the fact that the wife had filed a complaint under section 498-A of IPC against the husband, her father-in-law and other relatives, who had been acquitted in that case and the said decision of the acquittal had not been assailed before the higher forum, the allegations on that count were incorrect and untruthful and thus it could be unhesitatingly be stated that such an act creates mental trauma in the mind of the husband as no one would like to face a criminal proceeding of this nature on baseless and untruthful allegations. In this case also the appellant and his family members have been acquitted since the allegations made in the complaint filed by the respondent and in the proceedings filed by the prosecution were not proved on merits. The said judgment of the learned Magistrate First class has admittedly been upheld by the  learned Session Court and by this court. The said judgment, in my view, would squarely apply to the fact of this case.
  16. The Supreme Court in case of G.V.N. Kameswara Rao vs. G. Jabilli, reported in (2002) 2 SCC 296 has adverted to its earlier judgment in case of V. Bhagat vs. D. Bhagat, reported in (1994) 1 SCC 337 in which it was held that a mental cruelty under section 13(1)(i-a) can 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. 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. The Court must have regard 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. In that case also both the parties did not live together for a long period as happy married couple. The Supreme Court held in that case that the appellant husband could not be denied the relief by invoking section 23(1)(a) of the Hindu Marriage Act. https://twitter.com/atmwithdickhttps://vinayak.wordpress.com/http://evinayak.tumblr.com/
  17. The judgments referred to aforesaid clearly indicate that if the complaint filed by the wife against the husband under section 498-A of IPC and other related provisions was dismissed on merits and the husband and his family members are acquitted, it was clear that the complaint filed by the wife against the husband was a false complaint. In my opinion, filing of such complaint itself which create mental trauma on the husband and the complaint which was seriously prosecuted by the wife by leading evidence of several persons and  bringing the said complaint to its logical conclusion which ultimately resulted in acquittal of the husband and his family members clearly amounted to the cruelty committed by the wife upon the husband.
  18. The judgments of the Supreme Court and this Court which are referred to aforesaid squarely apply to the facts of this case. I am respectfully bound by those judgments. There is no dispute that the husband and his family members were ultimately acquitted in such complaint made by the respondent. It was not the case of the respondent before the trial Court as well as before the lower appellate Court that the finding rendered by the learned Magistrate First Class were erroneous and such allegations were not independently proved by the respondent before the learned trial Court as well as before the lower appellate Court. A perusal of the order passed by the lower appellate Court indicates that the evidence led by the respondent and other witnesses in the said criminal proceedings and the findings rendered by the learned Magistrate First Class have been totally ignored by the learned trial Court.
  19. The Supreme Court as well as this Court in the aforesaid judgments have consistently held that if the false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce. In my view, the respondent having filed a false complaint alleging offence under section 498-A and other provisions of IPC in which the appellant and his family members were acquitted and thus the appellant was entitled to seek divorce on the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act.
  20. Insofar as the submission of learned counsel for the  respondent that the appellant and the respondent were staying in a separate room and that there was no complaint filed by either party against each other till 2004 and thus there was no question of the respondent committing any cruelty against the appellant is concerned, the fact remains that the respondent had filed a complaint against the appellant and his family members under section 498-A of IPC. The appellant apprehending that such complaint would be filed, had filed a police complaint against the respondent on 31st May, 2004. As and by way of counter blast to the said complaint, the respondent filed a complaint under section 498-A of IPC on 4th June, 2004.
  21. Insofar as the submission of learned counsel for the respondent that in view of the appellant and the respondent staying for a period of six years i.e. from 1996 till 2002 together i.e. prior to the date of marriage as husband and wife,the learned trial Judge could not have granted divorce against the respondent in view of the appellant having taken advantage against the respondent by placing reliance on section 23(1)(a) of the Hindu Marriage Act, 1995 is concerned, in my view there is no merit in this submission of learned counsel. A perusal of the record clearly indicates that the respondent had filed two complaints against the appellant even prior to the date of marriage. Since the appellant married the respondent ultimately, both the complaints were compromised. The respondent thereafter filed a fresh complaint under section 498-A of IPC against the appellant and his family members and based on such false complaint, the appellant and his family members were arrested. In my view, since the respondent had taken advantage of the appellant of her own wrong and not the appellant as canvassed by learned counsel for the respondent, the appellant was entitled to seek divorce under the said provision. The said provision in these facts and circumstances would  come to the rescue of the appellant and not the respondent herein.
  22. This Court in case of Manoj Madhukarrao Pate vs. Sou.Vijaya Manoj Pate, reported in 2015(1) ALL MR 95 has considered a similar situation and has held that the wife who had filed a false complaint against the husband and his family members under section 498-A of IPC, and the husband and his family members having been acquitted, the husband was entitled to seek divorce on the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act, 1955 against the wife.
  23. In my view, the judgment of the Supreme Court in case of G.V.N. Kameswara Rao vs. G. Jabilli, reported in (2002) 2 SCC 296, on the issue raised by the learned counsel for the respondent under section 23(1)(i-a) of the Hindu Marriage Act, 1955 would apply to the facts of this case and would assist the case of the appellant husband.
  24. Insofar as the judgment of the Division Bench of this Court in case of Mrs.Deeplakshmi Sachin Zingade vs. Sachin Rameshrao Zingade (supra) relied by learned counsel for the respondent is concerned, in my view the said judgment is clearly distinguishable in the facts of this case. The complaint filed by the wife in the said matter was under the provisions of Domestic Violence Act and not under section 498-A of IPC. The provisions of section 498-A of IPC are totally different than the provisions of Domestic Violence Act.
  25. Insofar as the judgment of the Patna High Court in case of Bhola Kumar vs. Seema Devi @ Dolly (supra) relied upon by  learned counsel for the respondent is concerned, it is held by the Patna High Court that the institution of criminal case by the wife per-se would not constitute cruelty for seeking divorce. In the said matter, the criminal case was still pending adjudication before the Criminal Court of competent jurisdiction when the marriage petition for divorce was heard by the Family Court. In that context, the Patna High Court took a view that merely because criminal case was filed, it would not amount to cruelty. In this case, the criminal case was not only rejected, the order passed by the learned Magistrate First Class has been upheld by the learned Additional Sessions Judge as well as by this Court. The said judgment of the Patna High Court in my view, thus would not apply to the facts of this case and does not assist the case of the respondent.
  26. Insofar as substantial question of law framed by this Court is concerned, the same is accordingly answered in negative.
  27. In my view, the order passed by the lower appellate Court is totally erroneous and contrary to law laid down by the Supreme Court and this Court holding that if the wife had filed a false case against the husband and his family members in which the appellant husband and his family members are acquitted, it amounted to cruelty and the husband on the said ground was entitled to seek divorce. The impugned order passed by the lower appellate Court thus deserves to be set aside.
  28. I therefore pass the following order :-
  29. a)  Second Appeal No.634 of 2013 is allowed. The impugned order and judgment dated 7th August, 2010 passed by the Additional  District Judge, Palghar in Civil Appeal No.7 of 2008 is set aside. b). The judgment and decree passed in Marriage Petition No.52 of 2005 dated 31st January, 2008 passed by the learned Civil Judge, Senior Division, Palghar is restored to file. Marriage Petition No.52 of 2005 is decreed.

c). NO order as to costs.
(R.D. DHANUKA, J.)

 

At the request of learned counsel for the respondent, the operation of this order is stayed for a period of eight weeks from today.
(R.D. DHANUKA, J.)

 

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