Tag Archives: divorce granted

Filing #False498a on husband is #Cruelty. #Divorce affirmed. #MadrasHC

/////a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498A I.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce./////
******
Madras High Court
Author: M Chockalingam
Bench: N Balasubramanian, M Chockalingam

JUDGMENT M. Chockalingam, J.

1. This appeal has arisen from the order of the I Additional Family Court, Chennai, granting divorce in favour of the respondent husband under Sec. 13(1)(1a) of the Hindu Marriage Act.

2. The respondent husband sought a decree of divorce before the lower Court alleging that the marriage between himself and the appellant herein took place on 5.9.1991; that they have been living happily for a short while; that thereafter, she created problem and went over from the matrimonial house to her parents’ house; that she lodged a false complaint against him, on the basis of which a case was registered by the police for dowry harassment; that he was arrested and later, let on bail; that the criminal proceedings also went on, and thus, all along, he has been harassed by her; that because of that, he had mental cruelty, and hence, it was a fit case for granting the relief of divorce.

3. The O.P. was contested by the appellant wife stating that it is true that there was a marriage between the parties, but, she was driven away; that there was a child born; that he has not even cared to maintain her or her child; that the allegation that there was mental cruelty caused by the wife against the husband, is utterly false; that he having failed to maintain his wife and child, has come with this false case; that within a short time from the time of marriage, namely a week, there was a dowry harassment by the husband and his sister; that a complaint was lodged by her father in that regard; that pursuant to the same, a case came to be registered under Sec. 498A I.P.C., and criminal proceedings went on; that he was also found guilty in the said case by the trial Court; that the allegation now made by him is an invention; that in order to wriggle out of the marriage tie, he has filed this false case, and hence, the relief was to be denied. https://twitter.com/ATMwithDick/status/1021441313613459456

4. The trial Court recorded the evidence. On the appraisal of the entire evidence, the Court below has found that it was a fit case for divorce and accordingly, granted the relief, what is being challenged in this C.M.A.

5. The learned Counsel appearing for the appellant wife, would submit that in the criminal case, both the lower Courts have found that there was a dowry harassment; that though the judgments of the lower Courts were set aside by this Court, there was sufficient evidence let in to substantiate the dowry harassment, and apart from that, having harassed his wife by demanding dowry, he has come forward with the false case for divorce; that he has not even cared to maintain the wife and child; and that it is pertinent to note that the wife has also filed a O.P. for restitution of conjugal rights, which shows the intention of the appellant to live with him. Added further the learned Counsel that the husband has not produced any iota of evidence to show that there was any cruelty made against him; that the petition should have been dismissed by the lower Court, and hence, the order of the lower Court has got to be set aside.

6. After careful consideration of the submission made by the learned Counsel for the appellant and on scrutiny of the available materials, this Court is of the considered opinion that it is not a fit case warranting for admission or for notice to the respondent. https://twitter.com/ATMwithDick/status/1021441313613459456

7. Admittedly, the appellant married the respondent on 5.9.1991, and out of the said wedlock, there was a male born. It is also not in dispute that she lived with him only for a short time. The only contention put forth by the appellant’s side, is that she was driven away from her matrimonial house, and thus, there was a necessity to live with her parents. On the contrary, the respondent husband came with the case of divorce stating that there was mental cruelty, exerted by her by lodging a false complaint under Sec. 498A I.P.C.; that a case came to be registered, and he was also arrested in that regard; that the same would constitute a cruelty, and hence, divorce has to be given. It is an admitted position that the appellant herein lodged a complaint against her husband, and criminal proceedings were initiated; that the said complaint was taken on file by the learned Chief Metropolitan Magistrate, Chennai, in C.C.No.11007 of 1992, and the trial went on. It is pertinent to point out that after the initiation of the criminal proceedings, the respondent herein was arrested, and subsequently, he was let on bail. Though the case ended in conviction, he took it on appeal in C.A.No.91 of 1998, which was taken up by the Sessions Court, Madras, which also confirmed the conviction and sentence imposed on him. In such circumstances, the husband took it on revision before this Court in Crl.R.C.No.941 of 2000. This Court had an occasion to consider the rival submissions made and to scrutinise the materials. This Court allowed the revision case and acquitted the respondent husband. At this juncture, it has to be pointed out that on the complaint given by the appellant wife against her husband for dowry harassment, a case came to be registered by the police, and he was arrested and let on bail. He faced the trial before the Chief Metropolitan Magistrate’s Court, Chennai in a Calendar Case, and he was convicted and sentenced. That apart, the appeal in C.A.91/98 preferred by him, has also met the same fate at the hands of the Sessions Court. Finally, he was acquitted by this Court.

8. It would be more appropriate and advantageous to reproduce the order of this Court in Crl.R.C.941 of 2000 as follows: “The facts narrated above indicate that the allegations in the complaint to P.W.8 on 26.5.92 should only be considered as an after thought and that the said complaint was given by P.W.1 only to harass the petitioners to subjugate the first petitioner to her wish to stay at Madras. I am unable to accept the prosecution version that the petitioners, joining with the other accused, made a demand for dowry.” Thus, from the wordings found in the judgment of this Court in the revision, it would be clear that it was a false complaint.

9. The case of the appellant was that there was no cruelty exerted, cannot be accepted or countenanced for the simple reason that a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498AI.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce.

10. The learned Counsel for the appellant would submit that the respondent husband has not even made any arrangement for the maintenance of the appellant wife and the minor child also. In such circumstances, while confirming the order of the lower Court, it is made clear that the observations made herein, will not in any way impede the appellant to take necessary proceedings in respect of maintenance for herself and for the child. https://twitter.com/ATMwithDick/status/1021441313613459456

11. With the above observation, this civil miscellaneous appeal is dismissed. No costs. Consequently, connected C.M.Ps. are also dismissed.

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18 lakhs alimony in spite of 25 years desertion !! Rajastan HC

  • checkered history of fights between spouses
  • husband claims that wife was a widow from her earlier marriage and it was hidden from him
  • he claims that she was also cantankerous
  • after initial spats etc, wife finally leaves in 1991
  • after numerous cases, matter finally reaches Rajastan HC. HC Also sees desertion / decrees desertion
  • However, IN the INTEREST of justice, HC says pay her 6 lakhs in addition to the 12 lakhs already paid !!
    …..and that is EVEN after an 18 year desertion !! …..

IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR

:JUDGMENT:

S.B. CIVIL MISC. APPEAL NO.99/1996

APPELLANT :

Smt. Raj Kumari @ Chandrakala w/o Shri Nandlal D/o
Shri Badri Singh, by caste Mali Kachhawaha, resident
of Sardarshahar at present Bikaner.

Versus

RESPONDENT :

Nandlal son of Late Shri Dalchand Ji, By caste Mali,
Sangodiya, resident of Sardarshahar Churu.

Date of Judgment :: 17.10.2016

PRESENT

HON’BLE MR. JUSTICE ARUN BHANSALI

Mr. Salil Trivedi, for the appellant/s.
Mr. Rajesh Parihar ) for the respondent/s.
Mr. Vinit Sanadhya)


BY THE COURT:

This appeal under Section 28 of the Hindu Marriage Act, 1955 (‘the Act’) is directed against the judgment and decree dated 5.10.1995 passed by the District Judge, Churu, whereby the petition filed by the respondent under Section 13 of the Act has been accepted and marriage between the parties has been dissolved.

The dispute between the parties has a checkered history. The petition for dissolution of marriage was filed by the respondent-husband under Sections 12 & 13 of the Act, inter-alia, with the averments that the marriage was solemnized between the parties on 20.11.1989 at Bikaner at the residence of Dr. Durga Gehlot; a daughter was borne out of the wedlock on 5.9.1990. It was alleged that the family members of the wife at the time of marriage wrongly indicated her name as Rajkumari and her age at 21 years, in fact, her real name was Chandrakala and her age as per the school certificate was much more and she was widow of Dr. Anil Kumar Gehlot, whereas it was informed that she was unmarried. It was alleged that marriage was solemnized by committing fraud, the said fact came to the notice of the husband during the posting at Bikaner and FIR No.197 dated 25.10.1993 was lodged, which is being investigated. It was alleged that the wife was of cantankerous nature and behaved cruelly with the husband and family members. It was alleged that while behaving in the offending manner, the wife continued to move between her matrimonial home and parental home and on 7.12.1991, uncle (mama) of the wife, without permission took her with him. Whereafter, she did not turn up till 25.10.1993 and continued to refuse to live with the husband. Before 25.10.1993, several efforts were made for bringing her back, however, the parents and aunty of the wife intimated that if the husband wants to come and live with her, he can come and live, the wife was not prepared to go and live with him. It was also alleged that despite repeated efforts made between 7.12.1991 to 25.10.1993, the wife did not return back and has deserted the husband. Based on the said allegation of cruelty and desertion, the petition was filed.

The appellant herein was served with the notice of the petition, she appeared through counsel before the trial court, however, on 26.8.1995, her counsel pleaded no instructions and therefore, ex-parte proceedings were initiated.

On behalf of the husband, four witnesses were examined and documents were exhibited.

After hearing counsel for the husband, the trial court came to the conclusion that desertion was proved, cruelty was also proved, however, it was held that in so far as fraud and declaring the marriage as void was concerned, the same was not proved and consequently, passed decree on 5.10.1995 for dissolution of marriage.

Feeling aggrieved, the appellant filed an appeal before this Court. When initially, the appeal came up before this Court for hearing, by judgment dated 13.12.2001, the appeal was dismissed on merits.

Feeling aggrieved, the appellant approached the Division Bench by filing D.B. Civil Special Appeal (Civil) No.8/2002. The Division Bench by its order dated 15.10.2009, set-aside the finding recorded by the trial court as well as learned Single Judge regarding curelty. However, qua the ground of desertion, it was noticed that the learned Single Judge has not given his own finding on said aspect and question as to whether ground of desertion was made or not is required to be probed into thread bare by the learned Single Judge and in those circumstances, the matter was sent back to the learned Single Judge for deciding the question of desertion afresh.

During the pendency of the present appeal, post remand, efforts were made for resolving the dispute amicably; on 19.8.2015, it was noticed by this Court in the order-sheet that the appellant wanted the ex-parte decree granted in favour of the respondent-husband Nandlal to be set-aside as she wanted to press for restoration of status as married wife of Nandlal. It was also noticed that the respondent-husband has since remarried with another woman namely Ambika in November, 1997 and out of second marriage, a child named Aditya was born and was aged 15 years and that there was no possibility for restoration of matrimonial home with the appellant. However, readiness and willingness to pay permanent alimony was expressed, the court directed deposited Rs.12,00,000/- towards part payment of amount of permanent alimony and it was directed that the said payment would remain subject to final decision of the present appeal, which amount of Rs.12,00,000/- was deposited by the respondent as noticed by order-sheet dated 5.1.2016.

It is submitted by learned counsel for the appellant that the trial court committed error in granting the decree on the ground of desertion, inasmuch as, the respondent had failed to plead and prove the necessary ingredients for proving the ground of desertion. It was submitted that irrespective of the fact that matter was proceeding ex-parte against the appellant, it was incumbent for the trial court to objectively assess the evidence available on record, which clearly indicates that no ground is made out as envisaged by provisions of Section 13(1)(ib) of the Act.

Reference was made to the second explanation to Section 13 and it was submitted that there was reasonable cause for the appellant to leave the matrimonial home, inasmuch as, circumstances were created forcing her to leave the matrimonial home. It was submitted that the very fact that FIR was lodged by the respondent alleging fraud on 25.10.1993, necessarily means that before 7.12.1991, on account of allegations made, atmosphere was created which resulted in the appellant leaving the matrimonial home and therefore, the necessary ingredients for providing desertion are not available and consequently, the finding of the trial court in this regard deserves to be set-aside. It was prayed that the appeal be allowed and the judgment impugned be set-aside.

Vehemently, opposing the submissions, it was submitted by learned counsel for the respondent that from the material available on record, it was apparent that the appellant has deserted the respondent for a continuous period of two years immediately preceding the presentation of the petition and had no cause for doing so; the submissions made by learned counsel for the appellant seeking to allege that there was reasonable cause on account of the fact that the respondent lodged an FIR on 25.10.1993 alleging fraud against the petitioner is, in fact, seeking premium on the wrongs committed by her. It as further submitted that from the evidence available on record, the desertion is proved, inasmuch as, the appellant chose not to contest the petition after putting an appearance before the trial court; even after passing of the impugned judgment, application under Order IX, Rule 13 CPC filed by the appellant was also dismissed by the trial court on 19.1.1996 and therefore, the appellant has no cause.

It was submitted that the desertion is also proved from the very fact that the appellant did not take any steps for restitution of conjugal right, if she had any interest in restoration of the matrimonial home.

Further submissions were made that present is a typical case of irretrievable break down of marriage, inasmuch as, admittedly parties are living separately since 7.12.1991 i.e. over 25 years now and after passing of the ex-parte decree and dismissal of application under Order IX, Rule 13 CPC and before the respondent was served with a notices in the present appeal, the respondent had contracted another marriage and has a child from the said wedlock. It was prayed that the judgment passed by the trial court is justified and same does not call for any interference.

Further submissions were made that under the directions of this Court the respondent had already paid a huge sum of Rs.12,00,000/- towards permanent alimony and is prepared to pay further reasonable sum in this regard and therefore, the appeal filed by the appellant deserves to be dismissed.

Reliance was placed on Sujata Uday Patil v. Uday Madhukar Patil : (2006)13 SCC 272.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

During the pendency of the appeal, an application under Order XLI, Rule 27 CPC was filed by the appellant inter-alia for placing on record the copy of judgment dated 11.6.2008 passed by the Additional Sessions Judge No.2, Bikaner in Cr. Appeal No.2/2007 (State of Rajasthan v. Nandlal) and copy of the statement dated 18.10.2001 recorded in the criminal trial before the Court of Additional Civil Judge (Jr.Div.)-cum- Judicial Magistrate, Ist Class, No.2, Bikaner. In the said application, except for indicating that the documents came into existence during the pendency of the appeal, nothing has been indicated as to how the documents were relevant for the proper adjudication of the present appeal and even during the course of submissions in the present appeal, no reference was made to either the application and / or the documents annexed with the application. In view thereof, besides the fact that no submissions were made qua the application and documents, even otherwise, there is no substance in the application, the same is, therefore, dismissed.

The essential condition for proving the ground of desertion are (i) – factum of separation and (ii)- intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as deserted spouse is concerned, (i)- absence of consent and (ii)- absence of conduct giving reasonable cause to spouse leaving matrimonial home to form necessary intention aforesaid. In the present case, the husband, in the petition seeking divorce alleged that on 7.12.1991 uncle of the appellant without permission took the appellant to Bikaner from Sardarshahar and whereafter, she did not return back to the matrimonial home till 25.10.1993 and continued to deny to live with the respondent at Sardarshahar. Efforts were made by the respondent and his close relatives before 25.10.1993 for bringing her back which was responded by counter proposal to the respondent to go and live with the wife at her parental home. It was also alleged that besides not returning back to the matrimonial home at Sardarshahar, the appellant did not visit the place where the respondent was serving, however, all the efforts made in this regard failed and it was apparent that the wife has deserted him. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

As already noticed herein-before, after service though the appellant put in appearance, whereafter as the counsel pleaded no instructions, the matter proceed ex-parte against the appellant and on behalf of the respondent, 04 witnesses were examined.

The respondent appeared as AW-1 and reiterated the contents of the petition. Further assertions were made that despite several efforts being made by the respondent and people of the Society, the appellant did not return back to the matrimonial home.

AW-2 Bharat Bhushan Arya, a lawyer by profession and Secretary of Mali Samaj, Bikaner and Vice President of Rajasthan Mali Samaj appeared in the witness-box and stated that despite efforts being made by the respondent, the father, uncle and aunty of the appellant did not send the appellant back to the matrimonial home. He tried to convince the appellant / parties to go back to the matrimonial home, which was rejected and it was suggested that the respondent should go and live with them.

AW-3 Banwari Lal, elder brother of the respondent also stated that uncle of the appellant took her to Bikaner from Sardarshahar and stated that the respondent can come and live with them, efforts were made to bring the appellant with them, the uncle of the appellant refused, efforts were made through Mali Samaj, however, that also did not succeed. AW-4 Rajendra, a neighbour of the respondent was examined, who also stated similar facts regarding uncle of the appellant taking her back to parental home and stated that the respondent can come and live with them.

From the material available on record as well as the submissions made by counsel for the parties, it is apparent that the appellant had left the matrimonial home on 7.12.1991 and despite the efforts made by the respondent, his family members and people of Mali Samaj, the appellant did not return back to the matrimonial home, on the other hand, it was insisted that in case, the respondent wants, he can come and live at the parental home of the appellant.

No submissions were made by counsel for the appellant to indicate that any efforts were made by the appellant to get back into the matrimonial home including filing of petition under Section 9 of the Act for restitution of conjugal rights.

So far as the submissions made by learned counsel for the appellant seeking to make out a case of reasonable cause in terms of second explanation to Section 13 is concerned, the said explanation reads as under:- “Explanation.- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

The submission made on behalf of the appellant is that from the dates indicated in the petition, whereby the appellant left the matrimonial home on 7.12.1991 and a FIR was lodged by the respondent alleging fraud on 25.10.1993 against the appellant, necessarily means that the atmosphere in the matrimonial home was such that it forced the appellant to leave the matrimonial home and therefore, she had a reasonable cause and therefore, the necessary ingredients as indicated in the explanation has not been fulfilled.

Besides the fact that no such plea was available before the trial court and consequently, there is no material available on record regarding the alleged reasonable cause for the appellant to leave the matrimonial home, it was the specific case of the respondent that as soon as he came to know of the fraud having been committed by the appellant, he lodged the FIR on 25.10.1993, this is not the case of the appellant that after the FIR was lodged that she left the matrimonial home and / or that the respondent came to know about the facts, which led to filing of the FIR even long prior to 7.12.1991 and the atmosphere was so poisoned that she have no option but to leave the matrimonial home. As the respondent has clearly indicated that the FIR was lodged on 25.10.1993 immediately on coming to know of the fraud on 25.10.1993, that cannot be a reasonable cause on 7.12.1991 for the appellant to leave the matrimonial home and therefore, the submissions made by learned counsel for the appellant seeking to plead reasonable cause for the appellant to leave the matrimonial home has no basis.

The ingredients of desertion as noticed hereinbefore i.e. factum of separation and intention to bring cohabitation permanently to an end are both proved and the defence as sought to be now projected in the appeal based on the available material having been found to be non-existent, the trial court was justified in coming to the conclusion that the appellant has deserted the respondent without any reasonable cause and was further justified in granting decree for dissolution of marriage between the parties. So far as irretrievable break down of marriage between the parties is concerned, the facts as noticed hereinbefore, are apparent wherein the parties are living separately for over 25 years now, after the decree for dissolution of marriage was granted by the trial court and the application for setting aside ex-parte decree was also rejected and before the notices of the present appeal were served on respondent, he had contracted marriage way-back in the year 1997 and therefore, the test laid down by the Hon’ble Supreme Court in this regard as to whether the marriage can be saved in the circumstances, the answer to the said aspect would be a big ‘No’.

So far as grant of permanent alimony is concerned, in the submissions made before the Court, though no submissions were made by learned counsel for the appellant, learned counsel for the respondent offered to pay reasonable sum towards permanent alimony to the appellant and also prayed that the fact that a sum of Rs.12,00,000/- has already been paid under the interim directions of this Court, direction can be given. Looking to the over all circumstances of the case, though apparently, no material is available on record for determination of amount of permanent alimony, in view of the fact that the respondent was working as C.I. In the Police Department as noticed in the order-sheet dated 19.8.2015 (supra), in the opinion of this Court ends of justice would meet in case, the respondent is directed to make payment of a further sum of Rs.6,00,000/- by way of permanent alimony besides the sum of Rs.12,00,000/- already paid by the appellant under the directions of this Court dated 19.8.2015 (supra). The amount be paid within a period of three months from the date of this judgment.

In view of the above discussions, the appeal filed by the appellant has no substance, the same is, therefore, dismissed.

However, the respondent is directed to make further payment of a sum of Rs.6,00,000/- to the appellant by way of permanent alimony within a period of three months and the order dated 19.8.2015 (supra) passed by this Court directing payment of a sum of Rs.12,00,000/- by way of part payment of permanent alimony is made absolute.

No order as to costs.

(ARUN BHANSALI), J.

rm/-

16 lakhs TOO little for UNCONSUMMATED marriage!! Maint. order sent back 13 years later by Patna HC

  • Marriage in 2003
  • Marriage unconsummated as per parties !
  • They seem to have separated just after a few months of married life !!
  • Husband obtained divorce at lower court and was also asked to pay Rs 16 Lakhs as alimony to wife !!
  • However wife appeals and says 16 Lakhs is too less
  • The Hon Patna HC dismisses that part of the lower court order (pertaining to maintenance) and sends it back for fresh adjudication !!
  • Since both wife and husband have NOT contested the divorce, the divorce is left as is !! meaning wife is free to even get re married !!

=============================================

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.450 of 2015

Reena Devi, aged about 34 years, wife of Sri Rohit Bishnoi, present resident of Mohalla – Jamtara, G.T. Road, Near Parasnath College, village + P.O. + P.S. – Dumri, District – Giridih (Jharkhand). …. …. Appellant

Versus

Rohit Bishnoi, son of Krishna Chandra Bishnoi, resident of Mohalla D.N. Das Lane, Bangali Akhara, Langar Toli, P.O. Bankipur, P.S. Kadamkuan, District & Town – Patna….. …. Respondent

With

Miscellaneous Appeal No. 271 of 2015

Rohit Bishnoi S/o Krishna Chandra Bishnoi Resident of Mohalla D.N. Das Lane, Bangali Aghara, Langar Toli, P.O. Bankipur, P.S. Kadamkuan, District Patna….. …. Appellant

Versus

Reena Devi W/o Rohit Vishnoi, D/o Om Shankar Agrawal Resident of Village Dumari Jamtara J.T. Road Near Paras Nath College, P.O. Dumari, P.S. Dumari, District Giridih (Jharkhand)….. …. Respondent

===========================================================

Appearance :
(In MA No. 450 of 2015)
For the Appellant/s : Mr. Manoj Kumar, Advocate For the Respondent/s : None.

(In MA No. 271 of 2015)
For the Appellant/s : None
For the Respondent/s : Mr. Manoj Kumar, Advocate

===========================================================

CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH And HONOURABLE JUSTICE SMT. NILU AGRAWAL

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)

Date: 06-09-2016

Heard learned counsel for the appellant in M.A. No. 450/2015. No one appears on behalf of the appellant in   M.A. No. 271/2015.

The two Miscellaneous Appeals arise out of the judgment and order dated 29.06.2015, passed by the Additional Principal Judge, Family Court, Patna, in Matrimonial Case No. 445 of 2010.

The case was instituted by Rohit Bishnoi, the husband, for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”). The sole contesting respondent, Smt. Reena Devi, was the estranged wife. Parties have appeared and led their evidence. The Court, upon consideration of the entire matter, granted the decree for dissolution of marriage by decree of divorce. While doing so, it noted that the parties were married on 06.03.2003, but within months there were serious differences, and since then, they have been living apart. The marriage has not been consummated, nor parties are inclined to forget the past and live together.

The two appeals that have been filed is against the part of the judgment, whereby and while granting the decree of divorce, the Family Court has granted Rs. 16,00,000/- (sixteen lacs) as permanent alimony in terms of Section 25 of the Act, to be paid by the husband to the wife.   Miscellaneous Appeal No. 450/2015 has been preferred by the wife challenging that permanent alimony, so fixed, is too little, whereas Miscellaneous Appeal No. 271/2015, as filed by the husband, is that, considering his status and his property, the alimony is strikingly high. Neither party had challenged the decree of divorce. Therefore, before us, the question is whether Rs. 16 lacs as fixed by the Trial Court is just and reasonable. The legal principles for fixing the permanent alimony are well settled and need not be discussed, but what is the evidence for the same is relevant. All that the wife can say is that the husband has a house in which there are some shops and live with parents on the first floor therein. Therefore, his status is very high and Rs. 16,00,000/- (sixteen lacs) is also very low. There is no evidence as to the valuation, or the other assets or the income of the husband. The husband, on the other hand, says that apart from the said property, which is old ancestral property, there is no income except rental income from those shops, and if he is asked to pay Rs. 16,00,000/- (sixteen lacs), he would first have to sell the entire property and then raise the money.

In our view, the first thing to be noted is that,  alimony has to be fixed upon cogent evidence to be led by the parties. It cannot be on ad hoc findings unsupported by materials on record.

In that view of the matter, there being hardly any evidence, we would set aside the matter and remand the matter to the Principal Judge, Family Court, Patna, only limited to the matter for determination of the quantum of alimony, in terms of Section 25 of the Act. So far as the decree of divorce is concerned, neither party having any objection, the same cannot be interfered with, and it would be deemed to have attained the finality.

Thus, both the appeals are allowed and the matter is remanded for fresh consideration by the Trial Court for the limited purpose as pointed out above. The Trial Court would be well advised to finalize the proceedings, preferably within six months.

(Navaniti Prasad Singh, J.)

(Nilu Agrawal, J.)

Rajeev/-

U

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.

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