http://www.thehindu.com/multimedia/archive/03037/Hindu_son_can_divo_3037056a.pdf
Sunday, December 11, 2016
Long separation ground for divorce
RAKESH KUMAR V/S MONIKA
Date:- Tuesday, November 29, 2016
Court:- High Court of Punjab and Haryana
Judges:- THE HONOURABLE MR. JUSTICE M. JEYAPAUL & THE HONOURABLE MR. JUSTICE TEJINDER SINGH DHINDSA
Advocates:- Parminder Singh. C.B. Goel.
Full Text:-
Tejinder Singh Dhindsa J. 1. The appellant assails the judgment and decree dated 15.01.2009 passed by the learned Additional District Judge Kurukshetra (in short 'the trial Court') dismissing his petition for dissolution of marriage by way of a decree of divorce. The appellant/husband filed a petition under Section 13-B of the Hindu Marriage Act 1955 on the twin grounds of cruelty and desertion. It was asserted that marriage between the parties was solemnized on 22.02.2002 at Kaithal according to Hindu rites and ceremonies. The appellant/husband sought to substantiate the grounds of cruelty and desertion against the respondent/wife inter alia on the following basis: (i) It was alleged that the wife was a short tempered lady and who was in the habit of picking up fights and quarrels on petty issues. (ii) It was asserted that the wife was of a non-cooperative nature and would never entertain the relatives as also friends of the husband. Rather she used to misbehave in the presence of the relatives and friends and on account of which the husband felt insulted and humiliated. (iii) The respondent/wife delivered a female child at her parental home at Kaithal on 10.12.2003 but no intimation of the same was given to the husband or his family members. (iv) That a false case bearing FIR No.291 dated 25.05.2006 under Sections 406/498-A IPC was registered against the husband as also his parents at Police Station City Kaithal in order to harass and humiliate not only the appellant/husband but also his father and mother. (v) As regards desertion it was asserted that the wife left the matrimonial home on 14.05.2003 without any rhyme and reason when she was pregnant. The husband as also his parents convened Panchayats on more than one occasion so as to bring the wife back into the matrimonial fold but with no success. Further alleged that not only did the wife decline to join company of the husband but even the Panchayat members were humiliated and insulted. The respondent/wife filed a written statement denying all the allegations. To the contrary the wife accused the appellant/husband of harassment and cruelty. Respondent averred that she has been maltreated and tortured for bringing insufficient dowry and demands of dowry were raised. She was turned out of the matrimonial home on 14.05.2003 when she was pregnant. When a female child was delivered at the parental home at Kaithal i.e. on 10.12.2003 due intimation had been furnished to the husband and who in spite thereof did not visit the respondent/wife and chose not to even see the new born child. Respondent/wife asserted in the written statement that extreme circumstances had been created by the husband as also his family members and which left her with no option but to lodge a complaint and which in turn led to registration of FIR No.291 dated 25.05.2006 at Police Station City Kaithal under Sections 406/498-A IPC. The trial Court framed the following issues: (i) Whether the petitioner is entitled to a decree of divorce on the ground of cruelty as alleged? OPP (ii) Whether the petitioner is entitled to a decree of divorce on the ground of desertion as alleged? OPP (iii) Whether petition is not maintainable in the present form? OPR (iv) Relief. Learned trial Court permitted the parties to lead evidence in support of their respective contentions. The appellant examined one Darshan Kumar as PW2 Darshan Lal as PW3 Ramsarup Sachdeva as PW4 his father Om Parkash as PW5 and he himself stepped into the witness box as PW6. On the other hand the respondent/wife herself appeared as RW1 and examined Tilak Raj her uncle as RW2 and Smt. Sudesh Rani her mother as RW3. Learned trial Court after considering the pleadings the evidence adduced and rival submissions determined issues No.1 and 2 against the appellant/husband and as a consequence dismissed the petition for divorce. Feeling dissatisfied with the judgment passed by the trial Court the instant appeal has been preferred by the appellant/husband. It would be apposite to take note that on a previous date of hearing i.e. on 04.03.2015 CM-1021-CII-2015 i.e. an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure was allowed by this Court thereby permitting the applicant/appellant to place on record judgment dated 30.09.2011 passed by the Judicial Magistrate 1st Class Karnal as Annexure P-1 acquitting the appellant/husband as also his parents namely Om Parkash and Sudesh Rani in case FIR No.291 dated 25.05.2006 that had been lodged at the instance of the respondent/wife. Permission was also granted to place on record at Annexure P-2 the judgment dated 25.05.2013 passed by the learned Sessions Judge Kaithal whereby the judgment of acquittal dated 30.09.2011 at Annexure P-1 was affirmed. Suffice it to observe that the judgment of acquittal in favour of the appellant/husband as also his parents came to be delivered after institution of the instant appeal bearing FAO-M-47 of 2009. Counsel for the appellant has raised a solitary submission in support of ground of cruelty by adverting to the judgment of acquittal dated 30.09.2011 (Annexure P-1) and urges that acquittal of the appellant/husband as also his parents entitles him to grant of decree of divorce on the ground of levelling false allegations and which in turn amounts to cruelty. Heavy reliance in support of such contention has been placed upon judgment of the Hon'ble Supreme Court in K. Sriniwas Rao Versus D.A. Deepa 2013 (2) RCR (Civil) 232. It has been vehemently argued that conduct of the respondent/wife in lodging a false FIR and in pursuing the criminal proceedings with an intent to ensure that the appellant/husband as also his father and mother are put in jail amounts to mental cruelty sufficient to form the basis for a decree of divorce. Per contra Mr. C.B. Goel learned counsel representing the respondent/wife submits that the appellant has not proved cruelty or desertion. A perusal of the findings recorded by the trial Court would reveal that the appellant has not proved any specific instances of cruelty whether mental or physical. It is argued that mere lodging of an FIR or acquittal of the appellant cannot be construed to be an act by cruelty particularly when the allegations are neither scandalous nor levelled against the character of the husband or his parents. Mr. Goel Advocate has placed reliance upon two Division Bench judgments rendered by this Court in Padam Kumar Jain Versus Ashi Jain @ Babita Jain 2016 (3) RCR (Civil) 396 and Amit Kaushik Versus Monika Gaur 2016 (3) RCR (Civil) 79. Counsel would also contend that the appellant/husband is not to be given any mileage on the basis of a judgment of acquittal recorded by giving 'benefit of doubt'. We have heard counsel for the parties and perused the records. The allegations raised by the appellant/husband and as discernible from the petition as well as the deposition of the appellant and his witnesses is devoid of any material particulars much less reference to any specific acts of cruelty whether physical or mental. The issue however that arises for consideration is whether the admitted acquittal of the appellant/husband as also his parents in a trial under Sections 406/498-A IPC can serve the foundation for grant of a decree of divorce. The issue that has been formulated hereinabove has been considered by the Hon'ble Supreme Court as also by this Court on a number of previous occasions. In K. Sriniwas Versus K. Sunita 2015 (1) RCR (Civil) 38 Hon'ble Supreme Court of India held as under: “The Respondent-wife has admitted in her cross-examination that she did not mention all the incidents on which her complaint is predicated in her statement under Section 161 of the Cr.P.C. It is not her case that she had actually narrated all these facts to the Investigating Officer but that he had neglected to mention them. This it seems to us is clearly indicative of the fact that the criminal complaint was a contrived afterthought. We affirm the view of the High Court that the criminal complaint was “ill advised”. Adding thereto is the factor that the High Court had been informed of the acquittal of the Appellant-Husband and members of his family. In these circumstances the High Court ought to have concluded that the Respondent-Wife knowingly and intentionally filed a false complaint calculated to embarrass and incarcerate the Appellant and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1) (ia) of the Hindu Marriage Act.” A Division Bench of this Court in Sushma Taya Versus Arvind 2015 (2) RCR (Civil) 888 while holding that acquittal of the husband in prosecution initiated at the hands of the wife raises an inference of cruelty observed as follows: 14. Needless to say that there appears no illegality or perversity in the judgment of learned trial Court. It has been held by Hon'ble Apex Court in a recent judgment in K. Srinivas Rao v. D.A. Deepa 2013 (2) R.C.R. (Civil) 232; 2013 (2) Recent Apex Judgments (R.A.J.) 102: 2013 (5) SCC 226 that it is now beyond cavil that if a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty such as would entitle the other spouse to claim a divorce. 15 Not only from the judgment Ex.PB but also from the report of the Women Cell Ex.PA and testimony of PW2 Ram Kumar it is established that the allegations of the appellant against her husband respondent-Arvind and his family members that they demanded dowry from her or ill treated her were false. Certainly levelling wild allegations and thrusting the agony of undergoing proceedings/trial in a criminal case on the husband and his family which ultimately proved to be false amounted to utmost cruelty towards the husband.” In FAO-120-M of 2003 titled as Surinder Pal Singh Versus Mandeep Kaur @ Bimla Rani decided on 26.02.2016 a Division Bench of this Court had observed that an allegation may itself not constitute cruelty but if the allegation is fake grave defamatory assassinates the character and is initiated to traumatize the other spouse then depending upon the nature of the allegation it may raise an inference of cruelty. It was further observed that the trauma suffered by a spouse who is arrested charge sheeted has faced a full-fledged criminal trial and is then acquitted by holding that charges levelled are false can but be imagined. It is in the light of such observations that the facts of the case in hand need close scrutiny. Perusal of the judgment of acquittal dated 30.09.2011 by the competent criminal Court at Annexure P-1 as also the judgment dated 25.05.2013 passed by the Appellate Court at Annexure P-2 affirming the decision of acquittal would make it apparent that assertion had been made by the respondent/wife as regards sufficient dowry having been given at the time of Shagan ceremony on 21.02.2002 on the date of marriage i.e. 22.02.2002 as also cash having been entrusted on subsequent dates to fulfill the repeated demands raised by the husband as also his parents. There were allegations made by wife of having been given merciless beatings having been kept hungry and then being turn out of the matrimonial home on the threat that she would be permitted entry back into the matrimonial house only upon bringing more money as also a Zen car. Based on the complaint FIR had been registered on 25.05.2006 at Police Station City Kaithal under Sections 406/498-A IPC. As regards proving of offence under Section 406 IPC even presuming that there had been entrustment of dowry articles/stridhan it had to be established that in spite of demand having been raised the same had not been returned and which in turn would be construed as criminal breach of trust. The competent criminal Court has recorded a finding based upon the deposition of the complainant herself as PW2 wherein she admitted in her cross-examination that no demand at any point of time had been raised for return of dowry articles/stridhan. Even the deposition of PW3 Sunil Kumar and who had claimed to have attended various Panchayat proceedings to amicably resolve the matter had not stated as regards any demand having been raised for return of stridhan. Even father of the complainant Ashok Kumar PW4 even though had deposed that his daughter had been thrown out of the matrimonial house did not even utter a single word as regards the dowry articles/stridhan having been demanded back and the accused i.e. the husband and his parents having refused to return the same. It is in the light of such cogent and valid reasoning based upon due appreciation of evidence that the criminal Court has come to the conclusion that no offence under Section 406 IPC was made out. As regards the offence punishable under Section 498-A IPC is concerned the allegations raised by the complainant/wife of having been teased taunted and tortured against demand of dowry has been disbelieved. In the complaint Ex.PG the respondent/wife had alleged that she had been kept hungry and without water for hours by the accused i.e. the husband and his parents only to pressurize the complainant and her family members to get their demands fulfilled. The competent criminal Court has taken a view that if such allegation was correct then the complainant i.e. the wife would have certainly disclosed such behaviour to her own parents. PW4 Ashok Kumar i.e. father of the complainant has not corroborated the version of the complainant in such regard. Furthermore mother of the complainant who would normally be seen as the best companion of a married daughter was not even examined by the prosecution and in fact was given up as not necessary. On the charge levelled by the respondent/wife of having been allegedly beaten up there was no specific attribution to any of the accused and even the manner and time of such beating was not disclosed. Furthermore the Appellate Court while disbelieving the version of the complainant and affirming the order of acquittal has noticed that as regards recovery of dowry articles/stridhan reflected in memo Ex.PD a recovery of a scooter bearing registration No.HR-05-L-4137 was shown but as per testimony of DW2 Rajbir Singh Registration Clerk such scooter stood registered in the name of the appellant/husband as on 22.10.2001 whereas the entrustment of the scooter was alleged to be on the date of marriage i.e. on 22.02.2002. This has also cast a serious doubt on the veracity of the allegation raised by the wife. We find that in the written statement filed by the respondent/wife to the petition instituted by the husband under Section 13 of the Hindu Marriage Act the same very allegations were reiterated. Such allegations have been found to be false by the competent criminal Court. It has gone uncontroverted that in pursuance to the registration of FIR on account of a complaint having been lodged by the respondent/wife the appellant/husband as also his father were arrested and sent to jail. Mother of the appellant/husband was constrained to file a petition seeking concession of pre-arrest bail and the same was granted subject to her joining investigation. The appellant/husband as also his parents have suffered the ignominy of a protracted trial on the basis of false and reckless allegations levelled by the respondent/wife. We are of the view that in such matters it is not only the acquittal in criminal proceedings of a spouse but also the conduct of the complainant party that would be material. We have even perused the statement recorded of the respondent/wife before the trial Court and who had appeared as RW1. In the cross-examination the respondent/wife has admitted that she along with her mother had accompanied the police party to Karnal to facilitate the recovery of dowry articles. It has already been noticed by us that during the course of criminal prosecution recovery had been got effected of articles that had not even been entrusted at the time of marriage or thereafter. A clear instance is the recovery of a scooter bearing registration No.HR-05-L-4137 as per recovery memo Ex.PD and which already stood registered in the name of appellant/husband on 22.10.2001 as opposed to the date of marriage which was subsequent in point of time i.e. on 22.02.2002. In the totality of circumstances we are of the considered view that the dictum in the judgments in K. Sriniwas and Sushma Taya's case (supra) applies squarely to the facts of the present case as well. The appellant/husband as also his parents have faced the pain anguish and agony of a criminal trial on the basis of allegations which was false and manufactured by the respondent/wife. Appellant/husband and his father were even sent to jail. We would have no hesitation in observing that the appellant/husband as also his parents would have also suffered loss of image as a consequence thereof. Under such circumstances there is a clear inference of cruelty inflicted at the hands of respondent/wife upon the appellant/husband as also his parents. The attempt made by Mr. C.B. Goel learned counsel appearing for the respondent/wife to draw a distinction between an 'honourable acquittal' as opposed to an acquittal in favour of an accused by granting 'benefit of doubt' is not well founded. Acquittal in a criminal case for want of evidence is an acquittal on merit. There is no provision for 'honourable acquittal' in criminal trial as per criminal jurisprudence. A Division Bench of this Court in Bhag Singh Versus Punjab and Sind Bank 2006 (1) SCT 175 interpreted the term 'benefit of doubt' in criminal proceedings. It was noticed that where the acquittal is for want of any evidence to prove the criminal charge mere mention of 'benefit of doubt' by the criminal Court is superfluous and baseless. The Court as such termed such acquittal as an 'honourable acquittal'. In Shashi Kumar Versus Uttar Haryana Bijli Vitran Nigam and another 2005 (1) RSJ 718 a Division Bench of this Court was again dealing with the term 'honourable acquittal'. It was observed that the moment a criminal charge fails in a Court of law the person would be deemed to be acquitted of the blame. Under such settled position of law the husband cannot be denied his right of raising the ground of cruelty seeking dissolution of marriage on account of having been acquitted by the competent criminal Court and such decision of acquittal having been affirmed even by the Appellate Court. Furthermore the reliance placed by learned counsel appearing for the respondent/wife in Amit Kaushik and Amit Kumar Jain's case (supra) is misplaced. In both the aforenoticed judgments no complaint had been filed by the wife till the filing of divorce petition at the hands of the husband. The distinguishing feature in the present case is that the complaint had been lodged by the respondent/wife and the FIR had been registered in the month of May 2006 whereas the petition under Section 13 of the Hindu Marriage Act seeking dissolution of marriage on the ground of cruelty and desertion was instituted by the appellant/husband only on 18.07.2006 i.e. later in point of time and in which a specific ground had been raised as regards registration of a false FIR by the respondent/wife and the same amounting to cruelty. The judgments rendered by this Court in Amit Kaushik and Padam Kumar Jain's case (Supra) as such would have no applicability. There is another aspect of the matter. The parties in the present case have lived separately concededly since the year 2005. In other words the period of separation has been more than a decade. Such a separation is bound to create an unbridgeable distance between husband and wife. It may also be said that the marriage has irretrievably broken down. We are conscious that irretrievable break down of marriage is not a ground for divorce under the Hindu Marriage Act 1955. Be that as it may such a long separation between the appellant/husband and respondent/wife can certainly be taken as a weighty circumstance while considering severance of the marital tie. In Samar Ghosh Versus Jaya Ghosh 2007 (2) RCR (Criminal) 515 the Hon'ble Supreme Court had culled out illustrative cases where inference of 'mental cruelty' can be drawn. One of the illustrations drawn out was in the following words: “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 severe 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.” In view of the discussion above and considering the overall facts and circumstances of the case we are of the considered view that the present appeal merits acceptance. As a result the appeal is allowed and the judgment and decree dated 15.01.2009 passed by the learned trial Court is set aside holding that the respondent has caused mental cruelty to the appellant/husband and on that ground the marriage between appellant and the respondent is dissolved by decree of divorce leaving the parties to bear their own costs. Appeal stands allowed.
Tejinder Singh Dhindsa J. 1. The appellant assails the judgment and decree dated 15.01.2009 passed by the learned Additional District Judge Kurukshetra (in short 'the trial Court') dismissing his petition for dissolution of marriage by way of a decree of divorce. The appellant/husband filed a petition under Section 13-B of the Hindu Marriage Act 1955 on the twin grounds of cruelty and desertion. It was asserted that marriage between the parties was solemnized on 22.02.2002 at Kaithal according to Hindu rites and ceremonies. The appellant/husband sought to substantiate the grounds of cruelty and desertion against the respondent/wife inter alia on the following basis: (i) It was alleged that the wife was a short tempered lady and who was in the habit of picking up fights and quarrels on petty issues. (ii) It was asserted that the wife was of a non-cooperative nature and would never entertain the relatives as also friends of the husband. Rather she used to misbehave in the presence of the relatives and friends and on account of which the husband felt insulted and humiliated. (iii) The respondent/wife delivered a female child at her parental home at Kaithal on 10.12.2003 but no intimation of the same was given to the husband or his family members. (iv) That a false case bearing FIR No.291 dated 25.05.2006 under Sections 406/498-A IPC was registered against the husband as also his parents at Police Station City Kaithal in order to harass and humiliate not only the appellant/husband but also his father and mother. (v) As regards desertion it was asserted that the wife left the matrimonial home on 14.05.2003 without any rhyme and reason when she was pregnant. The husband as also his parents convened Panchayats on more than one occasion so as to bring the wife back into the matrimonial fold but with no success. Further alleged that not only did the wife decline to join company of the husband but even the Panchayat members were humiliated and insulted. The respondent/wife filed a written statement denying all the allegations. To the contrary the wife accused the appellant/husband of harassment and cruelty. Respondent averred that she has been maltreated and tortured for bringing insufficient dowry and demands of dowry were raised. She was turned out of the matrimonial home on 14.05.2003 when she was pregnant. When a female child was delivered at the parental home at Kaithal i.e. on 10.12.2003 due intimation had been furnished to the husband and who in spite thereof did not visit the respondent/wife and chose not to even see the new born child. Respondent/wife asserted in the written statement that extreme circumstances had been created by the husband as also his family members and which left her with no option but to lodge a complaint and which in turn led to registration of FIR No.291 dated 25.05.2006 at Police Station City Kaithal under Sections 406/498-A IPC. The trial Court framed the following issues: (i) Whether the petitioner is entitled to a decree of divorce on the ground of cruelty as alleged? OPP (ii) Whether the petitioner is entitled to a decree of divorce on the ground of desertion as alleged? OPP (iii) Whether petition is not maintainable in the present form? OPR (iv) Relief. Learned trial Court permitted the parties to lead evidence in support of their respective contentions. The appellant examined one Darshan Kumar as PW2 Darshan Lal as PW3 Ramsarup Sachdeva as PW4 his father Om Parkash as PW5 and he himself stepped into the witness box as PW6. On the other hand the respondent/wife herself appeared as RW1 and examined Tilak Raj her uncle as RW2 and Smt. Sudesh Rani her mother as RW3. Learned trial Court after considering the pleadings the evidence adduced and rival submissions determined issues No.1 and 2 against the appellant/husband and as a consequence dismissed the petition for divorce. Feeling dissatisfied with the judgment passed by the trial Court the instant appeal has been preferred by the appellant/husband. It would be apposite to take note that on a previous date of hearing i.e. on 04.03.2015 CM-1021-CII-2015 i.e. an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure was allowed by this Court thereby permitting the applicant/appellant to place on record judgment dated 30.09.2011 passed by the Judicial Magistrate 1st Class Karnal as Annexure P-1 acquitting the appellant/husband as also his parents namely Om Parkash and Sudesh Rani in case FIR No.291 dated 25.05.2006 that had been lodged at the instance of the respondent/wife. Permission was also granted to place on record at Annexure P-2 the judgment dated 25.05.2013 passed by the learned Sessions Judge Kaithal whereby the judgment of acquittal dated 30.09.2011 at Annexure P-1 was affirmed. Suffice it to observe that the judgment of acquittal in favour of the appellant/husband as also his parents came to be delivered after institution of the instant appeal bearing FAO-M-47 of 2009. Counsel for the appellant has raised a solitary submission in support of ground of cruelty by adverting to the judgment of acquittal dated 30.09.2011 (Annexure P-1) and urges that acquittal of the appellant/husband as also his parents entitles him to grant of decree of divorce on the ground of levelling false allegations and which in turn amounts to cruelty. Heavy reliance in support of such contention has been placed upon judgment of the Hon'ble Supreme Court in K. Sriniwas Rao Versus D.A. Deepa 2013 (2) RCR (Civil) 232. It has been vehemently argued that conduct of the respondent/wife in lodging a false FIR and in pursuing the criminal proceedings with an intent to ensure that the appellant/husband as also his father and mother are put in jail amounts to mental cruelty sufficient to form the basis for a decree of divorce. Per contra Mr. C.B. Goel learned counsel representing the respondent/wife submits that the appellant has not proved cruelty or desertion. A perusal of the findings recorded by the trial Court would reveal that the appellant has not proved any specific instances of cruelty whether mental or physical. It is argued that mere lodging of an FIR or acquittal of the appellant cannot be construed to be an act by cruelty particularly when the allegations are neither scandalous nor levelled against the character of the husband or his parents. Mr. Goel Advocate has placed reliance upon two Division Bench judgments rendered by this Court in Padam Kumar Jain Versus Ashi Jain @ Babita Jain 2016 (3) RCR (Civil) 396 and Amit Kaushik Versus Monika Gaur 2016 (3) RCR (Civil) 79. Counsel would also contend that the appellant/husband is not to be given any mileage on the basis of a judgment of acquittal recorded by giving 'benefit of doubt'. We have heard counsel for the parties and perused the records. The allegations raised by the appellant/husband and as discernible from the petition as well as the deposition of the appellant and his witnesses is devoid of any material particulars much less reference to any specific acts of cruelty whether physical or mental. The issue however that arises for consideration is whether the admitted acquittal of the appellant/husband as also his parents in a trial under Sections 406/498-A IPC can serve the foundation for grant of a decree of divorce. The issue that has been formulated hereinabove has been considered by the Hon'ble Supreme Court as also by this Court on a number of previous occasions. In K. Sriniwas Versus K. Sunita 2015 (1) RCR (Civil) 38 Hon'ble Supreme Court of India held as under: “The Respondent-wife has admitted in her cross-examination that she did not mention all the incidents on which her complaint is predicated in her statement under Section 161 of the Cr.P.C. It is not her case that she had actually narrated all these facts to the Investigating Officer but that he had neglected to mention them. This it seems to us is clearly indicative of the fact that the criminal complaint was a contrived afterthought. We affirm the view of the High Court that the criminal complaint was “ill advised”. Adding thereto is the factor that the High Court had been informed of the acquittal of the Appellant-Husband and members of his family. In these circumstances the High Court ought to have concluded that the Respondent-Wife knowingly and intentionally filed a false complaint calculated to embarrass and incarcerate the Appellant and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1) (ia) of the Hindu Marriage Act.” A Division Bench of this Court in Sushma Taya Versus Arvind 2015 (2) RCR (Civil) 888 while holding that acquittal of the husband in prosecution initiated at the hands of the wife raises an inference of cruelty observed as follows: 14. Needless to say that there appears no illegality or perversity in the judgment of learned trial Court. It has been held by Hon'ble Apex Court in a recent judgment in K. Srinivas Rao v. D.A. Deepa 2013 (2) R.C.R. (Civil) 232; 2013 (2) Recent Apex Judgments (R.A.J.) 102: 2013 (5) SCC 226 that it is now beyond cavil that if a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty such as would entitle the other spouse to claim a divorce. 15 Not only from the judgment Ex.PB but also from the report of the Women Cell Ex.PA and testimony of PW2 Ram Kumar it is established that the allegations of the appellant against her husband respondent-Arvind and his family members that they demanded dowry from her or ill treated her were false. Certainly levelling wild allegations and thrusting the agony of undergoing proceedings/trial in a criminal case on the husband and his family which ultimately proved to be false amounted to utmost cruelty towards the husband.” In FAO-120-M of 2003 titled as Surinder Pal Singh Versus Mandeep Kaur @ Bimla Rani decided on 26.02.2016 a Division Bench of this Court had observed that an allegation may itself not constitute cruelty but if the allegation is fake grave defamatory assassinates the character and is initiated to traumatize the other spouse then depending upon the nature of the allegation it may raise an inference of cruelty. It was further observed that the trauma suffered by a spouse who is arrested charge sheeted has faced a full-fledged criminal trial and is then acquitted by holding that charges levelled are false can but be imagined. It is in the light of such observations that the facts of the case in hand need close scrutiny. Perusal of the judgment of acquittal dated 30.09.2011 by the competent criminal Court at Annexure P-1 as also the judgment dated 25.05.2013 passed by the Appellate Court at Annexure P-2 affirming the decision of acquittal would make it apparent that assertion had been made by the respondent/wife as regards sufficient dowry having been given at the time of Shagan ceremony on 21.02.2002 on the date of marriage i.e. 22.02.2002 as also cash having been entrusted on subsequent dates to fulfill the repeated demands raised by the husband as also his parents. There were allegations made by wife of having been given merciless beatings having been kept hungry and then being turn out of the matrimonial home on the threat that she would be permitted entry back into the matrimonial house only upon bringing more money as also a Zen car. Based on the complaint FIR had been registered on 25.05.2006 at Police Station City Kaithal under Sections 406/498-A IPC. As regards proving of offence under Section 406 IPC even presuming that there had been entrustment of dowry articles/stridhan it had to be established that in spite of demand having been raised the same had not been returned and which in turn would be construed as criminal breach of trust. The competent criminal Court has recorded a finding based upon the deposition of the complainant herself as PW2 wherein she admitted in her cross-examination that no demand at any point of time had been raised for return of dowry articles/stridhan. Even the deposition of PW3 Sunil Kumar and who had claimed to have attended various Panchayat proceedings to amicably resolve the matter had not stated as regards any demand having been raised for return of stridhan. Even father of the complainant Ashok Kumar PW4 even though had deposed that his daughter had been thrown out of the matrimonial house did not even utter a single word as regards the dowry articles/stridhan having been demanded back and the accused i.e. the husband and his parents having refused to return the same. It is in the light of such cogent and valid reasoning based upon due appreciation of evidence that the criminal Court has come to the conclusion that no offence under Section 406 IPC was made out. As regards the offence punishable under Section 498-A IPC is concerned the allegations raised by the complainant/wife of having been teased taunted and tortured against demand of dowry has been disbelieved. In the complaint Ex.PG the respondent/wife had alleged that she had been kept hungry and without water for hours by the accused i.e. the husband and his parents only to pressurize the complainant and her family members to get their demands fulfilled. The competent criminal Court has taken a view that if such allegation was correct then the complainant i.e. the wife would have certainly disclosed such behaviour to her own parents. PW4 Ashok Kumar i.e. father of the complainant has not corroborated the version of the complainant in such regard. Furthermore mother of the complainant who would normally be seen as the best companion of a married daughter was not even examined by the prosecution and in fact was given up as not necessary. On the charge levelled by the respondent/wife of having been allegedly beaten up there was no specific attribution to any of the accused and even the manner and time of such beating was not disclosed. Furthermore the Appellate Court while disbelieving the version of the complainant and affirming the order of acquittal has noticed that as regards recovery of dowry articles/stridhan reflected in memo Ex.PD a recovery of a scooter bearing registration No.HR-05-L-4137 was shown but as per testimony of DW2 Rajbir Singh Registration Clerk such scooter stood registered in the name of the appellant/husband as on 22.10.2001 whereas the entrustment of the scooter was alleged to be on the date of marriage i.e. on 22.02.2002. This has also cast a serious doubt on the veracity of the allegation raised by the wife. We find that in the written statement filed by the respondent/wife to the petition instituted by the husband under Section 13 of the Hindu Marriage Act the same very allegations were reiterated. Such allegations have been found to be false by the competent criminal Court. It has gone uncontroverted that in pursuance to the registration of FIR on account of a complaint having been lodged by the respondent/wife the appellant/husband as also his father were arrested and sent to jail. Mother of the appellant/husband was constrained to file a petition seeking concession of pre-arrest bail and the same was granted subject to her joining investigation. The appellant/husband as also his parents have suffered the ignominy of a protracted trial on the basis of false and reckless allegations levelled by the respondent/wife. We are of the view that in such matters it is not only the acquittal in criminal proceedings of a spouse but also the conduct of the complainant party that would be material. We have even perused the statement recorded of the respondent/wife before the trial Court and who had appeared as RW1. In the cross-examination the respondent/wife has admitted that she along with her mother had accompanied the police party to Karnal to facilitate the recovery of dowry articles. It has already been noticed by us that during the course of criminal prosecution recovery had been got effected of articles that had not even been entrusted at the time of marriage or thereafter. A clear instance is the recovery of a scooter bearing registration No.HR-05-L-4137 as per recovery memo Ex.PD and which already stood registered in the name of appellant/husband on 22.10.2001 as opposed to the date of marriage which was subsequent in point of time i.e. on 22.02.2002. In the totality of circumstances we are of the considered view that the dictum in the judgments in K. Sriniwas and Sushma Taya's case (supra) applies squarely to the facts of the present case as well. The appellant/husband as also his parents have faced the pain anguish and agony of a criminal trial on the basis of allegations which was false and manufactured by the respondent/wife. Appellant/husband and his father were even sent to jail. We would have no hesitation in observing that the appellant/husband as also his parents would have also suffered loss of image as a consequence thereof. Under such circumstances there is a clear inference of cruelty inflicted at the hands of respondent/wife upon the appellant/husband as also his parents. The attempt made by Mr. C.B. Goel learned counsel appearing for the respondent/wife to draw a distinction between an 'honourable acquittal' as opposed to an acquittal in favour of an accused by granting 'benefit of doubt' is not well founded. Acquittal in a criminal case for want of evidence is an acquittal on merit. There is no provision for 'honourable acquittal' in criminal trial as per criminal jurisprudence. A Division Bench of this Court in Bhag Singh Versus Punjab and Sind Bank 2006 (1) SCT 175 interpreted the term 'benefit of doubt' in criminal proceedings. It was noticed that where the acquittal is for want of any evidence to prove the criminal charge mere mention of 'benefit of doubt' by the criminal Court is superfluous and baseless. The Court as such termed such acquittal as an 'honourable acquittal'. In Shashi Kumar Versus Uttar Haryana Bijli Vitran Nigam and another 2005 (1) RSJ 718 a Division Bench of this Court was again dealing with the term 'honourable acquittal'. It was observed that the moment a criminal charge fails in a Court of law the person would be deemed to be acquitted of the blame. Under such settled position of law the husband cannot be denied his right of raising the ground of cruelty seeking dissolution of marriage on account of having been acquitted by the competent criminal Court and such decision of acquittal having been affirmed even by the Appellate Court. Furthermore the reliance placed by learned counsel appearing for the respondent/wife in Amit Kaushik and Amit Kumar Jain's case (supra) is misplaced. In both the aforenoticed judgments no complaint had been filed by the wife till the filing of divorce petition at the hands of the husband. The distinguishing feature in the present case is that the complaint had been lodged by the respondent/wife and the FIR had been registered in the month of May 2006 whereas the petition under Section 13 of the Hindu Marriage Act seeking dissolution of marriage on the ground of cruelty and desertion was instituted by the appellant/husband only on 18.07.2006 i.e. later in point of time and in which a specific ground had been raised as regards registration of a false FIR by the respondent/wife and the same amounting to cruelty. The judgments rendered by this Court in Amit Kaushik and Padam Kumar Jain's case (Supra) as such would have no applicability. There is another aspect of the matter. The parties in the present case have lived separately concededly since the year 2005. In other words the period of separation has been more than a decade. Such a separation is bound to create an unbridgeable distance between husband and wife. It may also be said that the marriage has irretrievably broken down. We are conscious that irretrievable break down of marriage is not a ground for divorce under the Hindu Marriage Act 1955. Be that as it may such a long separation between the appellant/husband and respondent/wife can certainly be taken as a weighty circumstance while considering severance of the marital tie. In Samar Ghosh Versus Jaya Ghosh 2007 (2) RCR (Criminal) 515 the Hon'ble Supreme Court had culled out illustrative cases where inference of 'mental cruelty' can be drawn. One of the illustrations drawn out was in the following words: “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 severe 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.” In view of the discussion above and considering the overall facts and circumstances of the case we are of the considered view that the present appeal merits acceptance. As a result the appeal is allowed and the judgment and decree dated 15.01.2009 passed by the learned trial Court is set aside holding that the respondent has caused mental cruelty to the appellant/husband and on that ground the marriage between appellant and the respondent is dissolved by decree of divorce leaving the parties to bear their own costs. Appeal stands allowed.
Sunday, November 6, 2016
False character assassination, False case, threat to life etc all amounts to Cruelty
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: October 03, 2016 Judgment Delivered on: October 07, 2016 MAT.APP.(F.C.) 63/2016
SANTOSH SAHAY ..... Appellant
Represented by: Mr.A.K.Sharma & Mr.C.M. Sharma, Advocates.
versus
HANUMAN SAHAY ..... Respondent
Represented by: Mr.Arunav Tiwari, Advocate with respondent in person.
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG HON’BLE MS. JUSTICE PRATIBHA RANI PRATIBHA RANI, J.
1. The appellant/wife is in appeal impugning the judgment and decree dated January 30, 2016 whereby the respondent/husband has been granted a decree of divorce on the ground of cruelty. For the sake of convenience we shall be referring the parties as ‘the wife’ and ‘the husband’.
2. HMA Petition No.73/10 (Old No.402/07) was filed by the husband seeking dissolution of marriage with the respondent on the ground of cruelty and desertion. The status of the parties at the time of marriage as pleaded in para 2 of the divorce petition was as under:
(i) Husband – 23 years – Hindu Bachelor
(ii) Wife – 18 years – Virgin
3. The marriage was consummated. The couple was blessed with two sons – elder one born on July 12, 2003 and younger one born on September 09, 2005.
4. It was an arranged marriage. The husband was belonging to a family of farmers though employed as teacher in Rajasthan. The father of the wife was a Government servant. As per the husband the wife was not comfortable leading a rural life in the village. When the husband got selected as a teacher in Delhi after one year of marriage, he brought his wife to Delhi. There were some temperamental differences between the husband and wife and of the wife with her in-laws. As per the husband the wife used to disrespect the guests visiting them and was not even preparing tea for them. His wife was indulged in some tantrik activities and performing ‘Tantrik Kriya’ which terrified him. She also used to light a diya during midnight and perform puja. She also put clove, cardamom and beetle nut under his pillow cover. The wife also used to tie half baked bread smeared with vermilion on her belly, prepare a effigy of flour and used to insert the iron nail (keel) in it and immerse it in Yamuna river. She made an attempt to strangulate him with her hands. She also used to avoid physical relations. Though he tried to make her understand the need to satisfy the sexual desires, she did not pay any heed and continued avoiding him. Not only that, she also accused him of having illicit relationship with
Judgment Reserved on: October 03, 2016 Judgment Delivered on: October 07, 2016 MAT.APP.(F.C.) 63/2016
SANTOSH SAHAY ..... Appellant
Represented by: Mr.A.K.Sharma & Mr.C.M. Sharma, Advocates.
versus
HANUMAN SAHAY ..... Respondent
Represented by: Mr.Arunav Tiwari, Advocate with respondent in person.
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG HON’BLE MS. JUSTICE PRATIBHA RANI PRATIBHA RANI, J.
1. The appellant/wife is in appeal impugning the judgment and decree dated January 30, 2016 whereby the respondent/husband has been granted a decree of divorce on the ground of cruelty. For the sake of convenience we shall be referring the parties as ‘the wife’ and ‘the husband’.
2. HMA Petition No.73/10 (Old No.402/07) was filed by the husband seeking dissolution of marriage with the respondent on the ground of cruelty and desertion. The status of the parties at the time of marriage as pleaded in para 2 of the divorce petition was as under:
(i) Husband – 23 years – Hindu Bachelor
(ii) Wife – 18 years – Virgin
3. The marriage was consummated. The couple was blessed with two sons – elder one born on July 12, 2003 and younger one born on September 09, 2005.
4. It was an arranged marriage. The husband was belonging to a family of farmers though employed as teacher in Rajasthan. The father of the wife was a Government servant. As per the husband the wife was not comfortable leading a rural life in the village. When the husband got selected as a teacher in Delhi after one year of marriage, he brought his wife to Delhi. There were some temperamental differences between the husband and wife and of the wife with her in-laws. As per the husband the wife used to disrespect the guests visiting them and was not even preparing tea for them. His wife was indulged in some tantrik activities and performing ‘Tantrik Kriya’ which terrified him. She also used to light a diya during midnight and perform puja. She also put clove, cardamom and beetle nut under his pillow cover. The wife also used to tie half baked bread smeared with vermilion on her belly, prepare a effigy of flour and used to insert the iron nail (keel) in it and immerse it in Yamuna river. She made an attempt to strangulate him with her hands. She also used to avoid physical relations. Though he tried to make her understand the need to satisfy the sexual desires, she did not pay any heed and continued avoiding him. Not only that, she also accused him of having illicit relationship with
another lady. The husband has also pleaded that he is a non-smoker a teetotaller but he was
defamed by her as an alcoholic and womanizer. This adversely affected his reputation in the
family so much so that he even thought of committing suicide. The averments made in para 46
of the petition refer to the incident where after the wife left the matrimonial home, are extracted
hereunder:
’46. That from that day the Petitioner had the sleepless night, the petitioner was always worried about his sons and their life. The petitioner never had sleep after that day. The respondent again one day when petitioner was sleeping came and again tried to strangulate him. The respondent was as if she was under some evil spell, taking the knife in her hand she tried to kill the petitioner. It was midnight time; the petitioner after getting rid of her went out of his house and keeps on roaming in the street like a mad whole night. The bad thoughts about his sons keep on haunting the Petitioner whole night. The petitioner after mustering up some courage and believing god went back to his house in the morning but to his shock and his dismay, the respondent was gone with his both son. That when enquired from the neighbours it transpired that the Respondent without informing anybody with her bag and baggage.’
5. The husband sought divorce on the ground of cruelty and desertion.
6. In the written statement the wife denied all the instances of cruelty and desertion alleged in the divorce petition. She pleaded that her husband was not a bachelor at the time of his marriage with her. His first wife committed suicide by jumping into the well because of the harassment and torture caused to her. After her marriage she was also severely beaten by her father-in-law Sh.Ram Sahay and brothers-in-law Sh.Ranjeet, Sh.Parbhas Dayal, Sh.Ram Gopal and Sh.Ram Babu. She also claimed that she was harassed on non-fulfilment of the dowry demand. While pleading that the parties were having normal conjugal relationship till the period March 28, 2007 to June 18, 2007, when the husband had gone to attend the marriage of her sister on June 19, 2007 at Alwar, Rajasthan, he returned without attending the marriage.
7. While raising preliminary objection about the maintainability of the divorce petition but admitting relationship of husband and wife between the parties, the wife pleaded it to be a case of she being harassed on account of dowry demand. She also pleaded that the husband had relations with other women. He always came late at night in drunken state and did not share bed with her in the same room for sleeping at night and had been neglecting not only her but also his matrimonial obligations.
8. While the husband examined himself as PW1 he also produced two more witnesses as PW2 – Kishan Lal and PW3 – Bhagwan Dass who visited them and were insulted by his wife.
9. The wife examined herself as RW1.
10. After considering the evidence adduced by the parties, learned Judge, Family Court dismissed the divorce petition on the ground of desertion for the reason that the divorce petition was filed before expiry of statutory period of two years from the date of desertion.
11. On the ground of cruelty, learned Judge, Family Court concluded as under:
(i) The allegations regarding demands of dowry by the wife are general, vague and ambiguous.
(ii) There was no evidence of her husband being earlier married or the wife committing suicide on account of dowry demand.
(iii) The wife has tarnished the reputation of the husband by assassinating his character that he was having relationship with a school teacher.
’46. That from that day the Petitioner had the sleepless night, the petitioner was always worried about his sons and their life. The petitioner never had sleep after that day. The respondent again one day when petitioner was sleeping came and again tried to strangulate him. The respondent was as if she was under some evil spell, taking the knife in her hand she tried to kill the petitioner. It was midnight time; the petitioner after getting rid of her went out of his house and keeps on roaming in the street like a mad whole night. The bad thoughts about his sons keep on haunting the Petitioner whole night. The petitioner after mustering up some courage and believing god went back to his house in the morning but to his shock and his dismay, the respondent was gone with his both son. That when enquired from the neighbours it transpired that the Respondent without informing anybody with her bag and baggage.’
5. The husband sought divorce on the ground of cruelty and desertion.
6. In the written statement the wife denied all the instances of cruelty and desertion alleged in the divorce petition. She pleaded that her husband was not a bachelor at the time of his marriage with her. His first wife committed suicide by jumping into the well because of the harassment and torture caused to her. After her marriage she was also severely beaten by her father-in-law Sh.Ram Sahay and brothers-in-law Sh.Ranjeet, Sh.Parbhas Dayal, Sh.Ram Gopal and Sh.Ram Babu. She also claimed that she was harassed on non-fulfilment of the dowry demand. While pleading that the parties were having normal conjugal relationship till the period March 28, 2007 to June 18, 2007, when the husband had gone to attend the marriage of her sister on June 19, 2007 at Alwar, Rajasthan, he returned without attending the marriage.
7. While raising preliminary objection about the maintainability of the divorce petition but admitting relationship of husband and wife between the parties, the wife pleaded it to be a case of she being harassed on account of dowry demand. She also pleaded that the husband had relations with other women. He always came late at night in drunken state and did not share bed with her in the same room for sleeping at night and had been neglecting not only her but also his matrimonial obligations.
8. While the husband examined himself as PW1 he also produced two more witnesses as PW2 – Kishan Lal and PW3 – Bhagwan Dass who visited them and were insulted by his wife.
9. The wife examined herself as RW1.
10. After considering the evidence adduced by the parties, learned Judge, Family Court dismissed the divorce petition on the ground of desertion for the reason that the divorce petition was filed before expiry of statutory period of two years from the date of desertion.
11. On the ground of cruelty, learned Judge, Family Court concluded as under:
(i) The allegations regarding demands of dowry by the wife are general, vague and ambiguous.
(ii) There was no evidence of her husband being earlier married or the wife committing suicide on account of dowry demand.
(iii) The wife has tarnished the reputation of the husband by assassinating his character that he was having relationship with a school teacher.
12. Written submissions running into 13 pages have been filed by the learned counsel for the
appellant, major part of which refer to the pleadings in the divorce petition. The contentions
raised in the written submissions to disprove cruelty by the wife can be noted as under:
(i) The husband was under graduate at the time of marriage. The fact that he not only completed his graduation but also got a Government job after one year of marriage reflects that the wife provided a peaceful and healthy environment at home.
(ii) The persons who were allegedly defamed or insulted by the wife have not been examined and even PW2 and PW3 did not depose about any rumour being heard by them which had the effect of adversely affecting the character of the husband.
(iii) The wife is only 8th Class pass and there is no question of she getting any job in place of her husband if something goes wrong with him.
(iv) Birth of two children out of this wedlock indicates her dedication and love for the husband.
(v) The allegation against her of making long calls from PCO on the false pretext, that she was calling her family, has not been established.
(vi) Name of the Tantrik who performed the puja is not disclosed.
(vii) No complaint was made to the police when the husband was allegedly tried to be strangulated by her.
(viii) She always expressed her desire to live with the husband which has not been considered by the Family Court.
(ix) The legal recourse taken by her by filing petition under Section 125 Cr.P.C. and FIR No.901/07 under Section 498A/406/34 IPC at PS Uttam Nagar against the husband and his family does not amount to cruelty.
13. Before dealing with the contentions raised on behalf of the wife we would like to note that in the written statement filed on August 23, 2007 by the wife she had made various defamatory allegations against the husband especially in preliminary objection No.5 which reads as under:
‘That the petitioner is a teacher and he has the relation with other women and he always came late at night with drinking condition and he was not shared, the room for sleeping at night and thus, the respondent has neglecting from the matrimonial relation as husband and wife, hence, this present petition is liable to be dismissed with cost.’
14. Thereafter in FIR No.901/07 under Section 498A/406/34 IPC, registered on December 07, 2007 at PS Uttam Nagar, apart from making allegations of she being harassed and tortured on account of dowry demand, without referring the month/year even by approximation she pleaded of being compelled to bring `50,000 from her parents for purpose of arranging a job for the husband. She apprised her parents about the physical and mental torture and the beatings given by her father-in-law as well younger brothers of her husband, she being dragged out of the house and again given beating by kicking and hitting with fist and blows. She talked to her father who sent `50,000 through her Fufa – Sh.Madan Lal and thereafter she was kept well for a few days. The FIR further reads as under:
‘mere pati Hanuman Sahay sarkari school mein master ki naukri par lag gaye hain. Jo kuch baad hi ek aurat jo mere pati ke school mein teacher hai ko ghar par laaye aure mujhe batlaya ki yeh meri dharma ki behan hai lekin 3⁄4 mah baad hi uske avaid sambandh sthapit kar liye aur
(i) The husband was under graduate at the time of marriage. The fact that he not only completed his graduation but also got a Government job after one year of marriage reflects that the wife provided a peaceful and healthy environment at home.
(ii) The persons who were allegedly defamed or insulted by the wife have not been examined and even PW2 and PW3 did not depose about any rumour being heard by them which had the effect of adversely affecting the character of the husband.
(iii) The wife is only 8th Class pass and there is no question of she getting any job in place of her husband if something goes wrong with him.
(iv) Birth of two children out of this wedlock indicates her dedication and love for the husband.
(v) The allegation against her of making long calls from PCO on the false pretext, that she was calling her family, has not been established.
(vi) Name of the Tantrik who performed the puja is not disclosed.
(vii) No complaint was made to the police when the husband was allegedly tried to be strangulated by her.
(viii) She always expressed her desire to live with the husband which has not been considered by the Family Court.
(ix) The legal recourse taken by her by filing petition under Section 125 Cr.P.C. and FIR No.901/07 under Section 498A/406/34 IPC at PS Uttam Nagar against the husband and his family does not amount to cruelty.
13. Before dealing with the contentions raised on behalf of the wife we would like to note that in the written statement filed on August 23, 2007 by the wife she had made various defamatory allegations against the husband especially in preliminary objection No.5 which reads as under:
‘That the petitioner is a teacher and he has the relation with other women and he always came late at night with drinking condition and he was not shared, the room for sleeping at night and thus, the respondent has neglecting from the matrimonial relation as husband and wife, hence, this present petition is liable to be dismissed with cost.’
14. Thereafter in FIR No.901/07 under Section 498A/406/34 IPC, registered on December 07, 2007 at PS Uttam Nagar, apart from making allegations of she being harassed and tortured on account of dowry demand, without referring the month/year even by approximation she pleaded of being compelled to bring `50,000 from her parents for purpose of arranging a job for the husband. She apprised her parents about the physical and mental torture and the beatings given by her father-in-law as well younger brothers of her husband, she being dragged out of the house and again given beating by kicking and hitting with fist and blows. She talked to her father who sent `50,000 through her Fufa – Sh.Madan Lal and thereafter she was kept well for a few days. The FIR further reads as under:
‘mere pati Hanuman Sahay sarkari school mein master ki naukri par lag gaye hain. Jo kuch baad hi ek aurat jo mere pati ke school mein teacher hai ko ghar par laaye aure mujhe batlaya ki yeh meri dharma ki behan hai lekin 3⁄4 mah baad hi uske avaid sambandh sthapit kar liye aur
ab mujhe tatha mere bachhon ko beghar karke nikalna chahta hai. Mere pita ji biradari ke
paanch-saat logon ko le kar iske paas (pati ke paas) aaye aur samjhane ki koshish ki jis par
Hanuman Sahay (pati) ne kaha ki main to dusari aurat rakhunga. Jo chahe kar lo. Aap se
anurodh prarthna hai ki meri shikayat par uchit karyavahi kar ke mera jeevan surakshit kiya
jaaye.’
15. Perusal of the LCR shows that when the wife left the matrimonial house, both the children were left with the father. Thereafter one child was taken away by the wife. In MAT Appeal No.10/2012 filed by the husband the order dated February 09, 2012 passed by this Court records his concern as father for the child Yash who was taken by the wife to the village. He was studying in Air Force School at Palam, Delhi. The said order reads as under:
‘the only grievance of the appellant is that the child is studying in a village and he wants that the child should study in Air Force School at Palam, Delhi where he was earlier studying. The appellant/husband has also agreed to bear the school expenses of the child apart from maintenance of `6,000/- which he is already paying to the respondent/wife.
He has also stated that he has no objection if the respondent/wife continues to stay in the house of the appellant at Mohan Garden, Uttam Nagar, where she was earlier residing. The learned counsel for appellant has stated that appellant has no objection if custody of child remains with respondent/wife as is ordered by Ld. Trial Court. The respondent is present in person. The counsel for respondent, after taking instructions from her, has stated that the respondent has no objection and has agreed that she will bring the child Yash in Delhi and she has also no objection in staying in the aforesaid accommodation and also sending the child to the Air Force School as per wish of appellant/husband. Appellant/husband has agreed that it will be his responsibility to get the child admitted in the said school.’
16. It is an admitted fact, recorded by the Family Court, in the order on application under Section 24 of the Hindu Marriage Act, 1955 that the house which was purchased by the husband in Delhi is in use and occupation by the wife since beginning and it is the husband who is residing in a rented accommodation. Thus the allegation made by the wife that he intended to dispossess them from the house, which was purchased by the husband by availing loan facility, is contrary to the factual situation noted in the two orders (i) by the Family Court while disposing of an application under Section 24 of the Hindu Marriage Act, 1955; and (ii) by this Court in MAT Appeal No.10/2012.
17. Testimony of PW2 and PW3 proved that when they visited the house of the appellant, they had to face insult and humiliation at the hands of the wife. They were produced by the husband not to prove that his character has been assassinated but to bring on record the conduct of his wife even with the guests visiting their house.
18. So far as character assassination of the husband is concerned, it is a matter of record that such accusations have been made not only in the written statement filed on August 23, 2007 but also thereafter in the FIR registered on December 07, 2007. It may be relevant to refer here that after taking the plea in the written statement that the husband is not only a drunkard but also lives in adultery and failed to perform matrimonial obligations, she pleaded of being harassed after the marriage and physically assaulted for not meeting the dowry demands. The written submissions are just contrary to that. Wherein she projected herself to be a good wife providing right kind of environment to the husband for study and preparing for competition for government job, she could not have done so had she been harassed and physically tortured on above grounds. It may be relevant to mention here that the marriage was solemnised on May 01, 2001 and FIR making such types of allegations was lodged on December 07, 2007, almost after a period of six and a half years of marriage.
19. The averment made in the written statement that the husband and in- laws tried/threatened
15. Perusal of the LCR shows that when the wife left the matrimonial house, both the children were left with the father. Thereafter one child was taken away by the wife. In MAT Appeal No.10/2012 filed by the husband the order dated February 09, 2012 passed by this Court records his concern as father for the child Yash who was taken by the wife to the village. He was studying in Air Force School at Palam, Delhi. The said order reads as under:
‘the only grievance of the appellant is that the child is studying in a village and he wants that the child should study in Air Force School at Palam, Delhi where he was earlier studying. The appellant/husband has also agreed to bear the school expenses of the child apart from maintenance of `6,000/- which he is already paying to the respondent/wife.
He has also stated that he has no objection if the respondent/wife continues to stay in the house of the appellant at Mohan Garden, Uttam Nagar, where she was earlier residing. The learned counsel for appellant has stated that appellant has no objection if custody of child remains with respondent/wife as is ordered by Ld. Trial Court. The respondent is present in person. The counsel for respondent, after taking instructions from her, has stated that the respondent has no objection and has agreed that she will bring the child Yash in Delhi and she has also no objection in staying in the aforesaid accommodation and also sending the child to the Air Force School as per wish of appellant/husband. Appellant/husband has agreed that it will be his responsibility to get the child admitted in the said school.’
16. It is an admitted fact, recorded by the Family Court, in the order on application under Section 24 of the Hindu Marriage Act, 1955 that the house which was purchased by the husband in Delhi is in use and occupation by the wife since beginning and it is the husband who is residing in a rented accommodation. Thus the allegation made by the wife that he intended to dispossess them from the house, which was purchased by the husband by availing loan facility, is contrary to the factual situation noted in the two orders (i) by the Family Court while disposing of an application under Section 24 of the Hindu Marriage Act, 1955; and (ii) by this Court in MAT Appeal No.10/2012.
17. Testimony of PW2 and PW3 proved that when they visited the house of the appellant, they had to face insult and humiliation at the hands of the wife. They were produced by the husband not to prove that his character has been assassinated but to bring on record the conduct of his wife even with the guests visiting their house.
18. So far as character assassination of the husband is concerned, it is a matter of record that such accusations have been made not only in the written statement filed on August 23, 2007 but also thereafter in the FIR registered on December 07, 2007. It may be relevant to refer here that after taking the plea in the written statement that the husband is not only a drunkard but also lives in adultery and failed to perform matrimonial obligations, she pleaded of being harassed after the marriage and physically assaulted for not meeting the dowry demands. The written submissions are just contrary to that. Wherein she projected herself to be a good wife providing right kind of environment to the husband for study and preparing for competition for government job, she could not have done so had she been harassed and physically tortured on above grounds. It may be relevant to mention here that the marriage was solemnised on May 01, 2001 and FIR making such types of allegations was lodged on December 07, 2007, almost after a period of six and a half years of marriage.
19. The averment made in the written statement that the husband and in- laws tried/threatened
to set her on fire by pouring kerosene oil on her is conspicuously absent in the FIR. Making
such type of accusations in the written statement in itself amounts to causing mental cruelty to
the husband especially when his entire family has been blamed for giving beatings on
non-fulfilment of the dowry demand. The wife has not examined either her father or her Fufa to
establish that the alleged demand of `50,000 was fulfilled for arranging a job for the husband
nor this fact is pleaded in the written statement. It is a matter of record that he got the job on
merits. The husband has education to her sons in a reputed school in Delhi even after the wife
left him and continue doing so even after litigation started. Even if all the pleas by the wife are
considered to be proved, she could not establish herself to be a victim of matrimonial offence.
20. With a view to examine the correctness of the finding returned by the learned Judge, Family Court that the husband was subjected to cruelty, we have re-appreciated the entire evidence. First of all we may note that plea of the wife that her husband was already married and his first wife committed suicide by jumping into a well, which was concealed at the time of her marriage to the respondent, has not been substantiated by any material – oral or documentary. Suffice it to note here that a case of unnatural death of young bride and that too in a village can never be kept a secret. Such type of unnatural deaths invite penal action. We restrict our discussion only on the under mentioned four grounds for the reason if these grounds are substantiated by the respondent/husband, we need not delve any further:- (1) The wife insulting and humiliating not only the husband and in-laws but also the guests visiting their house.
Apart from the version of PW-1 – the husband, PW-2, Kishan Lal has also stated that on his visit to the house of the parties whenever the appellant/wife was asked to prepare tea, she used to abuse without caring for the presence of the guests. PW-3, Bhagwan Dass visited the house of the parties on the occasion of the birth of their younger son. He has also stated that without bothering for the presence of other guests the wife was abusing the husband that he had not properly invited her parental family. (2) Assassinating the character of the husband as leading an adulterous life and projecting him as drunkard.
Not only in the written statement filed on August 23, 2007 but also in the FIR registered on December 07, 2007 the husband has been accused of having illicit relationship. However, neither in the written statement nor during cross-examination of PW-1 the name of the lady has been disclosed. It may be noted that in the written statement the illicit relationship was stated to be with some women but in the FIR the lady was referred to be a teacher in the same school without disclosing her name. No evidence was led by the respondent/wife to bring on record that some lady was living in the same house along with them as his ‘Dharam Behan’ or that after 3-4 months her husband established illicit relationship with her. She has not led any evidence in support of these allegations or confronted the husband during his cross- examination Legal position is well settled that making of allegations against the spouse assassinating his character amounts to mental cruelty. In the decision reported as (2003) 3SCR 607, Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, the allegations of unchasity and extramarital relations were made by the husband against the wife. The Supreme Court considered it to be constituting mental cruelty and held as under:
‘Levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra-marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife.
Such aspersions of perfidiousness attributed to the wife, viewed in context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come
20. With a view to examine the correctness of the finding returned by the learned Judge, Family Court that the husband was subjected to cruelty, we have re-appreciated the entire evidence. First of all we may note that plea of the wife that her husband was already married and his first wife committed suicide by jumping into a well, which was concealed at the time of her marriage to the respondent, has not been substantiated by any material – oral or documentary. Suffice it to note here that a case of unnatural death of young bride and that too in a village can never be kept a secret. Such type of unnatural deaths invite penal action. We restrict our discussion only on the under mentioned four grounds for the reason if these grounds are substantiated by the respondent/husband, we need not delve any further:- (1) The wife insulting and humiliating not only the husband and in-laws but also the guests visiting their house.
Apart from the version of PW-1 – the husband, PW-2, Kishan Lal has also stated that on his visit to the house of the parties whenever the appellant/wife was asked to prepare tea, she used to abuse without caring for the presence of the guests. PW-3, Bhagwan Dass visited the house of the parties on the occasion of the birth of their younger son. He has also stated that without bothering for the presence of other guests the wife was abusing the husband that he had not properly invited her parental family. (2) Assassinating the character of the husband as leading an adulterous life and projecting him as drunkard.
Not only in the written statement filed on August 23, 2007 but also in the FIR registered on December 07, 2007 the husband has been accused of having illicit relationship. However, neither in the written statement nor during cross-examination of PW-1 the name of the lady has been disclosed. It may be noted that in the written statement the illicit relationship was stated to be with some women but in the FIR the lady was referred to be a teacher in the same school without disclosing her name. No evidence was led by the respondent/wife to bring on record that some lady was living in the same house along with them as his ‘Dharam Behan’ or that after 3-4 months her husband established illicit relationship with her. She has not led any evidence in support of these allegations or confronted the husband during his cross- examination Legal position is well settled that making of allegations against the spouse assassinating his character amounts to mental cruelty. In the decision reported as (2003) 3SCR 607, Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, the allegations of unchasity and extramarital relations were made by the husband against the wife. The Supreme Court considered it to be constituting mental cruelty and held as under:
‘Levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra-marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife.
Such aspersions of perfidiousness attributed to the wife, viewed in context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come
to be firmly laid down by the Supreme Court.’ In the instant case the spouse making such
allegations is wife who has branded her husband as a drunkard and leading an adulterous life.
The effect of such allegations on the state of mind of the husband is reflected in para No.44 of
the divorce petition. The husband has pleaded that he felt like committing suicide when his wife
made such type of accusations despite he being a non-smoker and teetotaller but desisted for
the sake of his son. (3) Accusing the husband and his entire family of treating the wife with
physical and mental cruelty on non-fulfilment of the dowry demand.
The marriage between the parties was solemnized on May 01, 2001. For more than six and a half years they lived together initially at his native place, then in Delhi. There was no averment in the written statement of any specific dowry demand being fulfilled. For the first time at the stage of registration of FIR in December, 2007 the allegations were made of fulfilment of the demand of Rs.50,000 to arrange a job for the husband and the money being sent by her father through her uncle (Fufa) Sh. Madan Lal, without even specifying the month/year of meeting the demand. The husband has qualified SSB just after one year of the marriage and is employed as a teacher in MCD school. This shows that he has qualified the competitive examination and got selected on merits. Absence of any such pleading in the written statement filed just four months prior to the registration of FIR is indicative of the falsity of such allegations. We are not informed about the fate of the investigation in the above FIR No. and whether the trial has been concluded or not. In this case we are dealing with the matrimonial offence which is required to be proved on probability and not on the standard of ‘proof beyond reasonable doubt’ as required in a criminal trial. We have drawn the above inference on the basis of averments made in the written statement dated August 23, 2007 and in the FIR dated December 07, 2007.
(4) Performing ‘Tantrik Kriyas‘ through a Tantrik and herself, the acts under the evil spell i.e. attempt being made on the life of the husband repeatedly to strangulate him and attack him with a knife.
In para Nos.38 and 39 of the divorce petition the husband had pleaded about the ‘Tantrik Kriyas’ being performed by the wife through Tantrik as well herself. In para No.45 of the petition the husband has pleaded that one night his wife tried to strangulate him which filled him with terror and shock. In para No.46 of the petition he again pleaded that he was spending sleepless nights worrying about his life and of his son. Another attempt made on his life by his wife was also by trying to strangulate him. His wife appeared to be under some evil spell and was having the knife in her hand at mid-night. He got out of the house and kept roaming on the street, feeling haunted. In the morning when he returned he found his wife missing with both the sons. He informed the incident telephonically to his father-in-law.
21. In the written statement the above averments have been simply denied by the wife.
22. We do not want to delve about motive behind such ‘Tantrik Kriyas’ or the intention behind keeping clove, cardamom and beetle nut under his pillow cover. The question to be decided is whether such acts by the wife constitute mental cruelty. A detailed analysis is available in a well reasoned decision reported as AIR 1961 P&H 125 P.L.Sayal Vs. Smt.Sarla Rani, in which numerous decisions have been cited and discussed on this subject. In the above noted case, it was conceded by the wife that some kind of magical charm or tawij or potion was administered by her to the petitioner/husband sometime in the end of 1951. Thereafter, the husband became ill. Apart from nervous breakdown he suffered various other complications. This was pleaded as an act of cruelty to seek judicial separation under Section 10 of Hindu Marriage Act, 1955. The petition was dismissed and impugned in appeal bearing FAO No. 72-D/1957 (decided on September 22, 1960).
The marriage between the parties was solemnized on May 01, 2001. For more than six and a half years they lived together initially at his native place, then in Delhi. There was no averment in the written statement of any specific dowry demand being fulfilled. For the first time at the stage of registration of FIR in December, 2007 the allegations were made of fulfilment of the demand of Rs.50,000 to arrange a job for the husband and the money being sent by her father through her uncle (Fufa) Sh. Madan Lal, without even specifying the month/year of meeting the demand. The husband has qualified SSB just after one year of the marriage and is employed as a teacher in MCD school. This shows that he has qualified the competitive examination and got selected on merits. Absence of any such pleading in the written statement filed just four months prior to the registration of FIR is indicative of the falsity of such allegations. We are not informed about the fate of the investigation in the above FIR No. and whether the trial has been concluded or not. In this case we are dealing with the matrimonial offence which is required to be proved on probability and not on the standard of ‘proof beyond reasonable doubt’ as required in a criminal trial. We have drawn the above inference on the basis of averments made in the written statement dated August 23, 2007 and in the FIR dated December 07, 2007.
(4) Performing ‘Tantrik Kriyas‘ through a Tantrik and herself, the acts under the evil spell i.e. attempt being made on the life of the husband repeatedly to strangulate him and attack him with a knife.
In para Nos.38 and 39 of the divorce petition the husband had pleaded about the ‘Tantrik Kriyas’ being performed by the wife through Tantrik as well herself. In para No.45 of the petition the husband has pleaded that one night his wife tried to strangulate him which filled him with terror and shock. In para No.46 of the petition he again pleaded that he was spending sleepless nights worrying about his life and of his son. Another attempt made on his life by his wife was also by trying to strangulate him. His wife appeared to be under some evil spell and was having the knife in her hand at mid-night. He got out of the house and kept roaming on the street, feeling haunted. In the morning when he returned he found his wife missing with both the sons. He informed the incident telephonically to his father-in-law.
21. In the written statement the above averments have been simply denied by the wife.
22. We do not want to delve about motive behind such ‘Tantrik Kriyas’ or the intention behind keeping clove, cardamom and beetle nut under his pillow cover. The question to be decided is whether such acts by the wife constitute mental cruelty. A detailed analysis is available in a well reasoned decision reported as AIR 1961 P&H 125 P.L.Sayal Vs. Smt.Sarla Rani, in which numerous decisions have been cited and discussed on this subject. In the above noted case, it was conceded by the wife that some kind of magical charm or tawij or potion was administered by her to the petitioner/husband sometime in the end of 1951. Thereafter, the husband became ill. Apart from nervous breakdown he suffered various other complications. This was pleaded as an act of cruelty to seek judicial separation under Section 10 of Hindu Marriage Act, 1955. The petition was dismissed and impugned in appeal bearing FAO No. 72-D/1957 (decided on September 22, 1960).
23. The question for determination in the appeal was whether the above act of the wife
constitutes such cruelty as to cause a reasonable apprehension in the mind of the husband that
it was harmful or injurious for him to live with her. While deliberating on the above subject it was
held:-
‘6. Considering the state of mind, the status and the prevailing notions of the strata of society to which the parties belong, the conclusion appears to be irresistible that a state of tension exists between the husband and the wife and the husband, at any rate, is afraid of living with his wife lest such a thing should happen again. Admittedly, the parties are not living together and their marital life has ceased to exist from 1953. It is to be seen in this context whether the conduct of which the petitioner complains comes within the ambit of legal cruelty according to the meaning attached to this word by eminent authorities.
xxxxxx
11. In my judgment, the crucial point to determine is whether there is reasonable apprehension in the mind of the petitioner of a similar act from his spouse in future. The evidence in this case leaves no doubt in my mind about the reality of this fear in the mind of the petitioner. I also think that the fear in the mind of the petitioner, in the context and circumstances of this case, is not groundless and is based on the instinct of self- preservation. He has suffered a great deal from the hands of an ignorant wife and no amount of repentance can undo the wrong that has been wrought. In this situation and state of affairs, it would be futile to expect the petitioner and the respondent to live a normal married life again and it would be a plain denial of justice to keep them within the bonds of marriage.’
24. Reverting to the facts of the instant appeal, we find that the acts of cruelty attributed to the wife have been proved by the husband not only by his own testimony but also by examining two other witnesses who visited their house and left insulted and humiliated. The allegations of dowry demand, physical and mental harassment made by the wife in the written statement and even going to the extent that she was threatened to be set on fire by putting kerosene oil on her are of very serious nature. Most of the allegations made in the written statement including threat to set her on fire are missing in the FIR No.901/07 under Section 498A/406/34 IPC, registered at PS Uttam Nagar just after four months of filing the written statement. The wife has been assassinating the character of the husband by accusing him of having illicit relationship with his colleague or projecting him as an alcoholic without there being even an iota of evidence to establish the above fact even on probabilities. We have unrebutted testimony of the husband that he is a non-smoker, teetotaller and was compelled to walk out of the house fearing threat to his life because of the ‘Tantrik Kriyas’ being performed by his wife. This is sufficient to create fear in his mind about his safety. The husband cannot be made to spend sleepless night fearing for his life.
25. The admitted fact that he purchased a house in Delhi after availing home loan facility and has given to his wife to live there by shifting to a rented accommodation, bearing the maintenance and education expenses of both sons and even ensuring that his children study in a good school in Delhi i.e. Air Force School Delhi reflect that he is a caring father having no intention to sell either the house or intend to dispossess them to settle in life with another lady.
26. The disgusting accusations made by the wife against the husband of he being in illicit relationship, referring him as a drunkard are serious in nature assassinating his character and harming his reputation as a teacher. She has failed to prove any of the above but yet resisting the divorce which if accepted, would make life of the two even more complex and unbearable. The allegations made not only in the written statement but also in the FIR against the husband and his entire family have the effect of causing mental cruelty to him and his entire family. It is now beyond cavil that if a false character assassination allegation is made by either spouse it would invariably constitute matrimonial cruelty to entitle other spouse to seek divorce.
‘6. Considering the state of mind, the status and the prevailing notions of the strata of society to which the parties belong, the conclusion appears to be irresistible that a state of tension exists between the husband and the wife and the husband, at any rate, is afraid of living with his wife lest such a thing should happen again. Admittedly, the parties are not living together and their marital life has ceased to exist from 1953. It is to be seen in this context whether the conduct of which the petitioner complains comes within the ambit of legal cruelty according to the meaning attached to this word by eminent authorities.
xxxxxx
11. In my judgment, the crucial point to determine is whether there is reasonable apprehension in the mind of the petitioner of a similar act from his spouse in future. The evidence in this case leaves no doubt in my mind about the reality of this fear in the mind of the petitioner. I also think that the fear in the mind of the petitioner, in the context and circumstances of this case, is not groundless and is based on the instinct of self- preservation. He has suffered a great deal from the hands of an ignorant wife and no amount of repentance can undo the wrong that has been wrought. In this situation and state of affairs, it would be futile to expect the petitioner and the respondent to live a normal married life again and it would be a plain denial of justice to keep them within the bonds of marriage.’
24. Reverting to the facts of the instant appeal, we find that the acts of cruelty attributed to the wife have been proved by the husband not only by his own testimony but also by examining two other witnesses who visited their house and left insulted and humiliated. The allegations of dowry demand, physical and mental harassment made by the wife in the written statement and even going to the extent that she was threatened to be set on fire by putting kerosene oil on her are of very serious nature. Most of the allegations made in the written statement including threat to set her on fire are missing in the FIR No.901/07 under Section 498A/406/34 IPC, registered at PS Uttam Nagar just after four months of filing the written statement. The wife has been assassinating the character of the husband by accusing him of having illicit relationship with his colleague or projecting him as an alcoholic without there being even an iota of evidence to establish the above fact even on probabilities. We have unrebutted testimony of the husband that he is a non-smoker, teetotaller and was compelled to walk out of the house fearing threat to his life because of the ‘Tantrik Kriyas’ being performed by his wife. This is sufficient to create fear in his mind about his safety. The husband cannot be made to spend sleepless night fearing for his life.
25. The admitted fact that he purchased a house in Delhi after availing home loan facility and has given to his wife to live there by shifting to a rented accommodation, bearing the maintenance and education expenses of both sons and even ensuring that his children study in a good school in Delhi i.e. Air Force School Delhi reflect that he is a caring father having no intention to sell either the house or intend to dispossess them to settle in life with another lady.
26. The disgusting accusations made by the wife against the husband of he being in illicit relationship, referring him as a drunkard are serious in nature assassinating his character and harming his reputation as a teacher. She has failed to prove any of the above but yet resisting the divorce which if accepted, would make life of the two even more complex and unbearable. The allegations made not only in the written statement but also in the FIR against the husband and his entire family have the effect of causing mental cruelty to him and his entire family. It is now beyond cavil that if a false character assassination allegation is made by either spouse it would invariably constitute matrimonial cruelty to entitle other spouse to seek divorce.
27. The findings recorded by the learned Judge Family Court in our opinion are fully borne out
from the material on record and cannot be faulted with. Therefore, the decree of divorce
granted by the Family Court has to be upheld.
28. The appeal is dismissed.
29. LCR be sent back alongwith copy of this order.
30. No costs.
PRATIBHA RANI (JUDGE) PRADEEP NANDRAJOG (JUDGE) October 07, 2016
28. The appeal is dismissed.
29. LCR be sent back alongwith copy of this order.
30. No costs.
PRATIBHA RANI (JUDGE) PRADEEP NANDRAJOG (JUDGE) October 07, 2016
Sunday, August 17, 2014
Chand Dhawan Vs Jawaharlal Dhawan [ SC ]
SMT. CHAND DHAWAN
Vs.
JAWAHARLAL DHAWAN [1993] RD-SC 303 (11 June 1993)
PUNCHHI, M.M.
PUNCHHI, M.M.
YOGESHWAR DAYAL (J)
CITATION: 1993 SCR (3) 954 1993 SCC (3) 406 JT 1993 (4) 22 1993 SCALE (3)1
ACT:
% Hindu Marriage Act, 1955-S. 25 and Ss. 9 to 14, 24 & 28-`Any decree' in S. 25-Dismissing of matrimonial petition, held, does not constitute `only decree' for award of permanent maintenance or alimony--Marital status has to be affected or disrupted for maintenance to be awarded--Evidence Act, 1862, s. 41 Hindu Marriage Act, 1955--S.25-Hindu Adoptions and Maintenance Act, 1956--S.18--Held, Court cannot grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other-Code of Criminal Procedure 1973, s. 125.
Interpretation of Statutes-Hindu Marriage Act. 1955-S. 25- Hindu Adoptions and Maintenance Act, 1956-S. 18-Held, where both statutes codified and clear on their subjects, liberality of interpretation cannot permit interchangeabil- ity so as to destroy distinction.
HEADNOTE:
The parties were married in 1972 in Punjab. In 1985, a petition for divorce by mutual consent was filed in court at Amritsar The appellant-wife alleged that she was not a consenting party, and the petition was dismissed in 1987 following an agreement on the basis of which she would be put back in the matrimonial home. However, barely three months later, the respondent husband filed a regular petition for divorce at Ghaziabad inter alia alleging adultery against his wife. The appellant-wife refuted the charge. The Court granted her maintenance pendente lite at Rs. 1,000 p.m. The husband not paving this amount, the divorce proceedings stand stayed.
On 22nd March, 1990 the appellant moved the District judge, Amritsar and was granted Rs. 6,000as litigation expenses and Rs. 2,000as maintenance pendente lite from the date of application under S. 24. She also claimed permanent alimony and maintenance under S. 25 of the Hindu Marriage Act, 1955.
On appeal, the High Court held that an application under S.
25 was not 955 maintainable as the matrimonial court at amritsar had not passed any decree for restitution of conjugal rights, judicial separation, nullity or divorce. Sequelly it quashed the order under S. 24 of the Act.
Dismissing the appeal, this Court
HELD:The right of permanent maintenance in favour of the husband or the wife is dependent (in the Court passing a degree of the kind envisaged under Ss. 9to 14 of the Act.
In (other words, without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim (of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption.
Kadia Martial Purshotham v. Kadia Lilavati Gokaldas AIR 1961 Guj 202; Shantaram Gopalshet Narkar v. Hirabai, AIR 1962 Bom 27 Minarani Majumdar v. Dasarath Majumdar AIR 1963 Cal 428;
Shantaram Dinkar Karnik v. Malti Shantaram Karnik AIR 1964 Bom 83; Akasam Chinna Babu v.Akasam Parbati, AIR 1967 Ori 163; Gurcharan Kaur v. Ram Chand, AIR 1979 P & H 206;
Darshan Singh v. Mst. Daso., AIR 1980 Raj 102; Smt.
Sushama v. Satish Chander, AIR 1984 Del 1; Vinod Chandra Sharma v. Smt. Rajesh Pathak, AIR 1988 All 150 and Ranganatham v. Shyamala AIR 1990 Mad 1, affirmed.
Smt. Swaran Lata v.Sukhvinder Kumar (1986) 1 Hindu LR 363;
Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bom 220; Surendra Singh Chauhan v. Mamta Chauhan, 11 1990 Divorce & Matrimonial Cases 208; Modilal kalaramji Jain v. Lakshmi Modilal Jain AlR 1991 Bom 440; and Shilla Jagannadha Prasad v. Smt. Shilla Lalitha Kumari 1988 Hindu LR 26, overruled.
Durga Das v. Smt. Tara Rani, AIR & H 141, referred to.
2.A Court intervening under the Hindu Marriage Act undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at the juncture when the marital status is affected or disrupted. It also retains the power subsequently to be invoked on application by a party entitled to relief. A nd such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.
3.While sustaining her marriage and preserving her marital status, a Hindu wife's claim to maintenance is codified is S.18 of the Hindu Adoptions 956 and Maintenance Act, 1956 and must necessarily be agitated thereunder.
4.The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.
Carew, & Co. v. Union of India [1975] 2 SCC 791 and Motor Owners' Insurance Co. Ltd. v. Jadavjit Keshavji Modi [1981] 4 SCC 660, referred to.
5.When distinctive claims are covered distinctly under two different statutes, choosing of one forum or the other, are not mere procedural technicalities or irregularities. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction. is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree which implies that unless it goes onwards, Moves or leads through, to affect or disrupt the marital status between the parties.
By rejecting a claim, the matrimonial court does make an appealable decree. in terms of section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or to take away any legal character or status.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2653-54 of 1991.
From the Judgment and Order dated 15.2.91 of the Punjab and Haryana High Court in Civil Revision Nos. 2998 and 2919 of 1990.
D.V. Sehgal and N.K. Aggarwal for the Appellant.
G.L, Saghi, P.P. Tripathi and Suchinto Chatterji for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J. The point which requires determination in these two appeals, arising from a common judgment and order dated February 15, 1991 of a Division Bench of the Punjab and Haryana High Court at Chandigarh, in Civil Revision Nos.
2918 and 2919 of 1990 is, whether the payment of alimony is admissible 957 without the relationship between the spouses being terminated.
The wife-appellant was married to the husband-respondent on September 19,1972 at Amritsar, in the State of Punjab.
Three children were born from the wed lock and are at present living with their father. Out of them two are males, their respective years of birth being 1973 and 1980 and the third is a female born in the year 1976. On 28-8- 1985 a petition under section 13-B of Hindu Marriage Act, 1955 (hereafter referred to as the Act') seeking divorce by mutual consent was received by the court of the Additional District Judge, Amritsar purported to have been failed jointly by the two spouses. It was stated therein that the parties had been living separately for over a year due to incompatibility of temperament and their effort to settle their differences amongst themselves, or with the aid of friends and relatives, had been futile. On receipt the petition was kept pending, as was the requirement of section 13-B of the Act. According to the wife she was not a consenting party to the filing of such petition at all. Her version was that the husband had duped her in obtaining her signatures on blank papers on a false pretext and in turn had employed those papers in the said petition for divorce.
On coming to know of the pendency of the petition, she immediately filed objections before the court, obstructing the grant of petition. The respective pleas of the parties were put to issue and evidence was led. According to the wife some understanding later was reached between the parties on the basis of which she was to be put back in the matrimonial home and thus the petition was got dismissed on 19-8-1987, on the basis of the joint statement of the parties before the Additional District Judge, Amritsar which was to the following effect:
"We agree that applications under sections 24 and 25 of Hindu Marriage Act may be dismissed.
We also agree that since the parties have not been able to make a joint statement within a period of six months of the original petition, the main petition under section 13B of the Hindu Marriage Act may be dismissed.
Otherwise too, the parties to the marriage do not want to proceed with their main application under section 13 of the Hindu Marriage Act and the same be also dismissed and the parties may be left to bear their own costs.
On the basis of the above statement, the court passed the following order, the same day:
"The applicant and counsel for the parties have made their statements recorded separately the main petition under section 13 and 958 also applications under sections 24 and 25 of the Hindu- marriage Act are dismissed as withdrawn. The parties are left to bear their own costs. The file be consigned." It appears that the dismissal of the petition under section 13-B led only to a temporary truce, and not peace as hoped.
Rehabilitation in the matrimonial home evaded the wife. The husband, who in the meantime had established his business at Ghazibad in Utter Pradesh, barely three months after the dismissal of the petition under section 13-B. approached the District Court at Ghaziabad in a regular petition for divorce under section 13 of the Act levelling, amongst others, allegations of adultery against the wife. To meet the offensive the wife refuted the charge of adultery and prayed to the Ghaziabad Court grant of maintenance pendente lite, which the Court fixed at Rs. 1000 per month. It appears since the husband had obstacled payment of maintenance pendente lite, divorce proceedings stand stayed under orders of the High Court of Allahabad, until the order of grant of maintenance pendente lite was obeyed. The matter thus stands stagnated there.
The wife then went in an offensive. She moved the court of Additional District Judge, Amritsar on 22-3-1990, under section 15 of the Hindu Marriage Act for the grant of permanent alimony on the plea that she was facing starvation, when her husband was a multi-millionaire, having cars, telephone facilities and other amenities of life.
Simultaneously she moved the court under section 24 of the Hindu Marriage Act for maintenance pendente lite and litigation expenses. After a grim contest between the parties the Additional District Judge, Amritsar on September 20, 1990 allowed the petition under section 24 of the Act granting her a sum of Rs. 6000 as litigation expenses and Rs. 2000 per month as maintenance pendente lite, from the date of application. The husband challenged the said order of grant in revision before the High Court of Punjab and Haryana at Chandigarh. The wife too approached the High Court in revision seeking enhancement of sums under both counts. Both the revision petitions being referred to a larger bench were disposed of by the common judgment under appeal sustaining the objection of the husband that an application under section 25 of the Act was, in the facts and circumstances, not maintainable; the Matrimonial Court at Amritsar, in the earlier litigation, having not passed any decree of the variables known as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, or Divorce, so as to quash proceedings under section 25 and sequally quashing the order under section 24 of the Act granting litigation expenses and maintenance pendente lite.
Hence these appeals.
959 Section 25 of the Act, as it now stands, after amendment by Act 68 of 1976 is reproduced hereunder:
"25 PERMANENT ALIMONY AND MAINTENANCE (1) Any court exercising jurisdiction under this Act may, at the time of passing- any decree or at any time subsequent thereto, on application made to it for purpose by either the wife o r the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2)If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub- section (1), it may at the instance of either party, very, modify or rescind any such order in such manner as the court may deem just.
(3)If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party very, modify or rescind any such order in such manner as the court may deem just]." It is relevant to reproduce Section 28 as well:
"28 APPEAL FROM DECREES AND ORDERS- (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act, under 960 section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order." Right from its inception, at the unamended stage, the words "at the time of passing any decree or any time subsequent thereto" posed difficulty. The majority of the High Courts in the country took the view that those words indicated that an order for permanent alimony or maintenance in favour of the wife or the husband could only be made when a decree is passed granting any substantive relief and not where the main petition itself is dismissed or withdrawn. It was also gathered that if no request for alimony was made at the time of passing the decree the same relief could be sought subsequently on an application. The relief of permanent alimony was deduced to be ancilliary or incidental to the substantive relief, and it was given to the party to whom such relief was due. The expression "any decree" was viewed to have been used having regard to the various kinds of decrees such as decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, and Divorce, which could be passed either on contest or consent. Some of the High Courts also had occasion to distinguish between the expression "passing any decree" referred to in section 25 (1) with "decrees made" referred to in section 28 providing for appeals from decrees and orders made by the Court in any proceeding under the Act, and such decrees being appealable, as decrees of the Court made in exercise of its original civil jurisdiction. It led to the determination of the question whether the denial of relief under the Act, when making a decree in the sense appealable under section 28, could be it a decree passed within the meaning of Section 25 entitling the respective spouses to claim permanent alimony thereunder. On this question too there has been rife a difference of opinion.
A Division Bench of the Gujarat High Court in Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas AIR [1961] Gujarat 202; ruled that the words "at the time of passing any decree or any time subsequent thereto" occurring in section 25 meant passing of any decrees of the kind referred to in the earlier provisions of the Act and not at the time of dismissing the petition for any relief provided in those 961 sections, or any time subsequent thereto. It was viewed that the expression "any decree" did not include an order of dismissal and that the passing of an order of dismissal of the petition could not be regarded as the passing of decree within the meaning of section 25. On that view a petition for permanent alimony preferred by the wife was dismissed when the petition of the husband for restitution of conjugal rights had been dismissed.
In Shantaram Gopalshet Narkar v. Hirabai, AIR [1962] Bombay 27 Vol. 49, a learned Single Judge of the Bombay High Court took the view that in order to confer jurisdiction upon the court to proceed under section 25(1) there must be a decree as contemplated under the Hindu Marriage Act and one of the decrees can. be under section 10(1) (B). And when the petition was allowed to be withdrawn, there was no decree passed in favour of the husband, and if there was no decree, the court had no jurisdiction to pass any order granting permanent alimony to the wife under section 25(1).
In Minarani Majumdar v. Dasarath Majumdar AIR [1963] Calcutta 428 Vol. 50, a Division Bench of the Calcutta High Court ruled that an order dismissing a petition by the husband for divorce under section 13 is not a decree within the meaning of section 25 and as such when no substantive relief is granted under sections 9 to 14, there is no passing of a decree as contemplated by section 25 and hence no jurisdiction to make an order for maintenance under the said section. Harilal's case (supra) of the Gujarat High Court was noticed and relied upon.
A learned Single Judge of the Bombay High Court in Shantaram Dinkar Karnik v. Malti Shantaram Karnik, AIR [1964] Bombay 83 - vol. 51 relying on the earlier decision of that court in Shantaram Gopalshet's case (supra) and kadia Hiralal's case (supra) reaffirmed the view that the expression "passing of any decree" only referred to passing of any decrees provided for in section 9 to 13 of the Act, even though technically speaking dismissal of a suit or a petition may be called a decree but not for the purpose of section 25 confering jurisdiction on the Matrimonial Court to grant permanent alimony.
A Division Bench of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati & Another AIR [1967] Orissa 163 - Vol. 54 denied the relief of permanent alimony when the petition for divorce of the husband had been dismissed. The views of the Bombay High Court and the, Gujarat High Court above referred to were taken in aid to get to that view.
A three-Judge full bench of the Punjab and Haryana High Court in Durga 962 as v. Smt. Tara Rani,AIR (1971) Punjab and Haryana 141 - Vol. 58, in a different context, while determining the question whether a party to a decree or divorce could apply for maintenance under sub-section (1) of section 25 of the Act after which decree has been granted, ruled that the proceedings for grant of permanent alimony were incidental to the main proceeding and as such an application for alimony could be made even after the grant of the decree for divorce.
A learned Single Judge of that Court, however, in Gurcharan Kaur v. Ram chand AIR 1979 Punjab and Haryana 206 Vol. 66 even while relying, on the full bench decision afore- referred went on to deny permanent alimony to the wife hose claim for decree of Nullity of Marriage stood dismissed and on that basis the petition for alimony was held not maintainable.
In Darshan Singh vs. Mst. Daso AIR 1980 Rajasthan 102 - Vol. 67 a learned single Judge of the Rajasthan High Court made a distinction between the expression "passing any decree" occurring in section 25 and the expression decree made" under section 28. He viewed that the former expression meant granting any relief of the nature stated in sections 9 to 13 while the later meant granting or refusing the relief. In other words, it meant that passing of any decree as to mean granting any relief, and the making of any decree was to mean granting or refusing any relief.
A Division Bench of the Delhi High court too in Smt. Sushma v. Shri Satish Chander AIR 1984 Delhi 1 Vol. 71 taking stock of the above-referred to views of the Rajasthan, Orissa.
Bombay, Calcutta and Gujarat High Courts affirmedly took the view that the passing of the decree in section 25 meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and not the passing of a decree dismissing the petition. It was further held that if the petition fails then no decree is passed, i.e., the decree is denied to the applicant and therefore alimony cannot be granted in a case where a decree is refused because in such a case the marriage subsists. The word "decree" in matrimonial cases was held to have been used in a special sense different from that in which it is used in the Civil Procedure Code.
Following Delhi High Court's decision in Sushma's case (supra), a learned Single Judge of the Allahabad High Court in Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 Allahahad 150 - Vol. 75 opined that when an application for divorce is dismissed, there is no decree passed and obviously therefore alimony cannot he granted because in such a case the marriage subsists.
963 A learned Single Judge of the Madras High Court in Ranganatham v. Shyamla AIR 1990 Madras 1- Vol. 77 too following the above decisions held that the existence of any of the decrees referred to in sections 9 to 13 is a condition precedent to the exercise of jurisdiction under section 25 (1) of the Act and the granting of ancilliary relief for permanent alimony and maintenance, when the main petition was dismissed, was not permissible.
A divergent view, however, was struck by a learned Single Judge of the Punjab and Haryana High Court in Smt. Swaran Lata v. Sukhvinder Kumar(1986) 1 Hindu Law Reporter 363 taking the view that when the rights of the parties stand determined conclusively with regard to matters in controversy, irrespective as to whether relief is granted or not, it culminates in a decree and on the basis of that decree, the wife would be entitled to claim maintenance or permanent alimony under section 25 of the Act. Not only was on such interpretation of sections 25 and 28 the view taken but liberality of interpretation was injected to justify the view. It was expressed that when the right of the wife to maintenance was assured under section 125 of the Code of Criminal Procedure, 1973 and section 18 of the Hindu Adoptions and Maintenance Act, 1956 and when that right of the wife was not being disputed, the court, in order to avoid multiplicity of proceedings could give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself. There the objection of the husband to the jurisdiction was termed as technical and the maintainability of claim under section 25 was upheld.
A learned Single Judge of the Bombay High Court in Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bombay 220- Vol. 76 also took a similar view and based his decision on "necessity of the times" expressing that technicalities should not be allowed to away any court. In the situation, the dismissal of petition for divorce was held to be no bar to grant maintenance under section 25 to the successful spouse.
Then in Surendra Singh Chaudan v. Mamta Chauhan II(1990) Divorce & Matrimonial Cases 208 a learned Single Judge of the Madhya Pradesh High Court taking the view that the dismissal of a petition amounts to passing of a decree for the purposes of Section 25 of the Act held that claim for permanent alimony was maintainable. The learned Judge ruled that there appeared to be no justification for curtailing the ambit of the words to go on to hold that a decree is not a "decree" for the purposes of section 25 of the Act, though a "decree" for the purposes of section 28 of the Act. Here again the intention of the legislature was gathered avoiding multiplicity of proceedings. so that every dispute between the parties, particularly connected with matters like maintenance etc. should be settled in the 964 same proceedings.
A learned Single Judge of the Bombay High Court in Modilal Kalaramji Jain v. Lakshmi Modilal Jain AIR 1991 Bombay 440 - Vol. 78 omitting the word "passing" from the expression, interpreted the expression "any decree" to include an order refusing to grant matrimonial relief and on that basis held adjudication of claim of permanent maintenance to be within the jurisdiction of the matrimonial court.
Same is the view of the Andhra Pradesh High Court in Shilla Jagannadha Prasad alias Ram v. Smt. Shilla Lalitha Kumari [1988] 1 Hindu Law Reporter 26 and some other cases which need not be multiplied.
The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the unmodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case law developed.
Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Sub- section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, 965 with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being siezen of the matter, invokes its ancilliary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to chance or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased of a broken marriage.
And in order to avoid conflict of perceptions the legislature while codifying the Hindu 'Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus.
Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant. And that such judgment, order or decree is conclusive proof as to the conferral, accrual,or taking away of such. legal character from a point of time as declared by the court. Such judgments are known as judgments in rem, binding the whole world. But the judgment of that kind must have done something positive, onwards. This provision is indicative of the quality of matrimonial jurisdiction.
We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and 966 whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18 (1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.
Relief to the wife may also be due under section 125 of the Code of Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest. This provision however has two peculiar features:
(i) the provision applies to all and not only to Hindus;
and (ii) maintenance allowance cannot exceed a sum of Rs. 500 per mensem.
But this is a measure in the alternative to provide destitute wives.
This court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V.K. Krishna Iyer, J. in Carew and Company v. Union of India [1975] 2 SCC 791 at pages 803-804. Towards interpreting statutes, the court must endeavour to see its legislative intendment.
Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the Provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owners' Insurance Company, Limited vs. Jadavji Keshavji Modi and others [1981] 4 SCC 660 paras 14. 15 and 16. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the for a should not stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn.
On the afore-analysis and distinction drawn between the fora and perceptives, 967 it is difficult to come to the view that a claim which is ancilliary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial court does make an appealable degree in terms of section 28, but neither affects nor disrupts the marriage.
It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician.
On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for (,rant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are over- ruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs.
Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance.While granting leave 968 this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000 per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Court's orders have not been complied with. Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith.
U.R. Appeal dismissed.
Sunday, February 23, 2014
Financially stable wife can’t claim maintenance: Bombay high court
Bombay High Court - Original Judgment
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 144 OF 2013
IN
M.J.PETITION NO. A - 382 OF 2008 Madhu Gupta ]
Age 61 years, Occ: Housewife ]
Residing at 504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Off. Four Bungalows Andheri West ]
Mumbai-400 053 ].. Appellant
(Ori. Respondent)
Vs.
Pravin Kumar Gupta ]
Age 65 years, Retired ]
Residing at 1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Off Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]..Respondent
(Ori. Petitioner)
WITH
CIVIL APPLICATION NO. 137 OF 2013
IN
F.C.A.NO. 144 OF 2013
IN
M.J.PETITION NO. A-382 OF 2008
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Madhu Gupta ]
Age 61 years, Occ: Housewife ]
Residing at 504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Off. Four Bungalows Andheri West ]
Mumbai-400 053 ].. Applicant/Appellant
(Ori. Respondent)
IN THE MATTER BETWEEN:
Madhu Gupta ]
Age 61 years, Occ: Housewife ]
Residing at 504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Off. Four Bungalows Andheri West ]
Mumbai-400 053 ].. Appellant
(Ori. Respondent)
Vs.
Pravin Kumar Gupta ]
Age 65 years, Retired ]
Residing at 1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Off Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]..Respondent
(Ori. Petitioner)
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WITH
CIVIL APPLICATION NO. 16 OF 2014
IN
F.C.A.NO. 144 OF 2013
Pravin Kumar Gupta ]
1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Off Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]
Temporarily Residing at ]
40, Denzil Ave, ]
St. Clair, NSW 2759, ]
Sydney, Australia ]..Applicant/Respondent
IN THE MATTER BETWEEN:
Madhu Gupta ]
504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Four Bungalows Andheri West ]
Mumbai-400 053 ].. Appellant
(Ori. Respondent)
Vs.
Pravin Kumar Gupta ]
at 1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]..Respondent
(Ori. Petitioner)
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.....
Mrs. Mrunalini Deshmukh and Ms. Devika Deshmukh along with
Mr. Mahesh Londhe and Ms. Radha Ved Advocates i/b M/s.
Sanjay Udeshi and Co. for Appellant in FCA No. 144 of 2013 and
Applicant in CAM No. 137 of 2013 and Respondent in CAM No.
16 of 2014
Mr. Dattatray P. Adarkar Advocate for Respondent in FCA No.
144 of 2013 and CAM No. 137 of 2013 and Applicant in CAM
No. 16 of 2014
.....
CORAM : SMT.V.K.TAHILRAMANI AND
SHRI. P.N.DESHMUKH, JJ.
DATED : FEBRUARY 11, 2014
JUDGMENT: [PER SMT. V.K.TAHILRAMANI,J.] :
1 Heard the learned counsel for the appellant-wife and
the learned counsel for the respondent-husband. By consent of
the parties, the matter is taken up for final hearing and
disposal. For the sake of convenience, hereinafter, the
appellant will be referred to as "the wife" and the respondent
will be referred to as "the husband".
2 This Family Court Appeal has been filed by the wife
against the judgment and order dated 22.10.2012 passed in
M.J. Petition No. A-382 of 2008 by the Family Court No.2,
Bandra, Mumbai, whereby her counter-claim for maintenance
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was dismissed. Admitted facts in this matter are that they
have two children i.e. one son Anindya and one daughter. Both
the children are married and they are settled abroad. The
husband had filed a petition for divorce on the ground of
cruelty which came to be dismissed. He has not challenged the
said decision in the petition for divorce. The wife had filed
counter-claim seeking judicial separation and maintenance of
Rs.15,000/- per month. The husband contested the counterclaim
by filing his Written Statement. The husband's petition
for divorce was dismissed on 13.1.2009 by the Family Court.
Thereafter, the wife adduced her evidence claiming for a
decree of judicial separation and maintenance of Rs.15,000/-.
On 13.8.2008, the Family Court exparte decreed the counterclaim
and accordingly decree of judicial separation was passed
and the husband was directed to pay Rs.25,000/- per month as
maintenance to the wife. The husband preferred Misc. Civil
Application for setting aside exparte decree passed on
13.8.2008. However, he did not challenge the decree of
judicial separation and he had only prayed for setting aside the
order relating to the maintenance. Misc. Civil Application was
granted on 19.3.2012. Thus, the decree passed on 13.8.2008
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in relation to maintenance, was set aside by order dated
19.3.2012. Thereafter, the wife led her evidence and the
evidence of her son Anindya and the husband adduced his
evidence.
3 It is well settled law that a wife who has no sufficient
permanent source of income, can only claim and get
maintenance from her husband who is having sufficient means.
The burden lies on the wife to prove that the husband has
refused and neglected to maintain her though he is having
sufficient means. The evidence of the wife and son Anindya
shows that the wife is staying separate since 2007 and the
husband has not given any amount to her towards
maintenance. It is an admitted fact that both the parties are
staying separately since the year 2007. As the decree for
judicial separation was granted in favour of the wife and the
decree of judicial separation has not been challenged by the
husband, on this ground the wife has a right to live separately
from husband. The husband has stated in his evidence that he
is staying in Australia and he is doing part-time work at Local
Community College (Nepean Community College). He has
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further stated that he was teaching three courses based on his
skills in Sales and Computers. Each course is of 8 lecturers of 2
hours duration each. He is paid 500 Australian Dollars post-tax
for the full course. His average monthly income post-tax was
400 Australian Dollars.
4 The learned counsel for the wife produced some
documents to show that the husband was a C.E.O. in XL2WIN
CONSULTANCY PVT. LTD. in Australia The said business is
conducted from 40 Denzil Avenue, St. Clair, NSW 2759. She
pointed out that one other firm i.e. Architectural Drafting and
Design Services also carries out business from the very same
address which shows that the husband is connected with the
said business. In order to support the claim that the husband is
connected with both the businesses, she pointed out that the
address of the said two businesses is the same as the
residential address of the husband. As far as these documents
are concerned, they were not produced before the Family
Court. No evidence was led in respect to these documents.
Even if the said documents are taken into consideration, they
do not show the income of the respondent-husband. Hence,
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these documents would be of no use to the appellant-wife.
5 In considering the prayer for maintenance, two issues
have to be considered viz. (1) whether the husband has
capacity to pay maintenance ? and (2) whether the wife has
any source of income to maintain herself ? The evidence of
the husband shows that he was earning an amount of 400
Australian Dollars per month. The wife has to prove that she
does not have any permanent source of income to maintain
herself. The wife is required to prove that she is not having
any permanent source of income and she is unable to maintain
herself. In order to prove the same, the wife has adduced her
evidence and evidence of her son Anindya. It is pertinent to
note that the wife has not specifically pleaded and stated in her
evidence that she is not having any permanent source of
income and that she is unable to maintain herself. It is further
pertinent to note that she has admitted in her crossexamination
in paragraph 52 that near about Rs.50 lakhs have
been deposited in the Banks as Fixed Deposits. As per Section
58 of the Evidence Act, admitted facts need not be proved.
Even otherwise the learned counsel for the appellant-wife has
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admitted that about Rs.50 lakhs is in the name of the wife in
the Bank. The evidence of the wife clearly shows that the wife
has invested Rs.50 lakhs in the Banks in Fixed Deposits and
she is getting interest on the said Fixed Deposits. In such case,
the appellant-wife could have produced and proved the Fixed
Deposit Certificates and rate of interest which she is getting.
Admittedly, she has not produced the Fixed Deposit
Certificates, therefore, it has not come on record that how
much interest she is getting. It is an admitted fact that the
wife is a senior citizen. In such case, she would get more
interest than the other depositors. If 9% is held to be the rate
of interest, then the wife would get Rs.4,50,000/- per year
which means that she would get Rs.37,500/- per month as
interest on Fixed Deposits of Rs.50 lakhs. The wife has stated
in her cross-examination at paragraph 48 that she is ready to
produce the Statements of Accounts of Mutual Funds standing
in her name alone but she has not produced the Statements of
Accounts of Mutual Funds. This shows that she has also made
investments in Mutual Funds in addition to Fixed Deposits
which clearly stand in her name but she has not produced the
same. If she would have produced the Statements of Accounts
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of Mutual Funds, then it would have gone against her,
therefore, she has not produced the same. In such
circumstances, an adverse inference is required to be drawn
against the appellant-wife and it is required to be held that she
is getting some dividends regularly from the investments made
in the Mutual Funds.
6 The wife has admitted in her evidence that she is
staying in Sheetal Apartment at Andheri, Mumbai. The flat in
Sheetal Apartment at Andheri, according to her, was bought
out of the money put in by her and her husband. The husband
has another flat which is also in Andheri in Panchavati Building.
The learned counsel for the respondent-husband has stated
that the flat has been given exclusively to the wife and she is in
exclusive possession of the same. This fact is admitted by the
learned counsel for the appellant-wife. In such case, there is
no question of giving rent for accommodation to the wife.
7 The learned counsel for the appellant-wife submitted
that though the Family Court had held that the wife has to
incur medical expenses, daily expenses, maintenance of
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society etc. yet, the Family Court has not awarded any
maintenance to the wife. She further pointed out that on
30.11.2013 the wife was required to undergo surgery for both
knees and the expenses for the said surgery came to about
Rs.10,39,000/-. She has further stated that the flat in which
the wife is staying is in dire need of repairs and she has
produced a copy of a letter of the Architect dated 9.1.2004
which shows that the flat needs repairs. Thus, it was submitted
that the wife would be required to incur expenses in relation to
the repairs of the flat also. As far as the documents relating to
the medical expenses for knee replacements are concerned,
the said expenses were incurred on 30.12.2013 which was
after the judgment and decree was passed in the present case.
The judgment and decree in the present case was passed on
22.10.2012 and the events mentioned in the documents have
occurred after the judgment and decree has been passed. In
view of this subsequent developments, the judgment passed
by the learned Judge of the Family Court cannot be faulted.
Similar is the situation in respect of the expenses for repairs of
the flat.
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8 It was contended on behalf of the wife that amount
was siphoned off by the husband from their joint account. The
said amount was about Rs.19,85,641/-. It is interesting to note
that the wife herself had not made any mention about the
same in her evidence. The son Anindya has made some
reference to such fact, however, no witness from the Bank has
been examined to prove that the husband had siphoned off
such amount from the joint account.
9 The learned counsel for the appellant-wife reiterated
time and again that the appellant wife was and is a home
maker and she has no independent source of income. It is also
an admitted fact that the wife has Rs.50 lakhs in Bank
Accounts, obviously, as the wife was not earning, the said
amount of Rs.50 lakhs must have come out of the husband's
earning. Besides the amount of Rs.50 lakhs which is deposited
in the Fixed Deposits in the name of the wife, it may be stated
that the husband had deposited Rs.2,00,000/- by way of
interim maintenance for the wife. The wife was allowed to
withdraw the said amount. She has deposited the said amount
in the Bank as Fixed Deposits which is admitted by her in her
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cross-examination in paragraph 58. If really the wife was in
need of money for her maintenance, then definitely she would
have spent the amount and would not have invested it in Fixed
Deposits in the Bank. This shows that the wife is having
sufficient money for her maintenance. The wife is getting at
least an amount of Rs.37,500/- per month from the Fixed
Deposits. In addition, she is getting some additional amount
of interest on Rs.2,00,000/- which has been invested by her
which was received by her by way of interim maintenance. In
addition to this amount, she is getting some amount by way of
interest on the money she has invested in Mutual Funds. All
these amounts are more than sufficient for her maintenance. It
is seen that the wife is having sufficient permanent source of
income to maintain herself.
10 The learned counsel for the respondent-husband
submitted that the wife is having sufficient means for her
survival and therefore, she is not entitled to get maintenance.
He has placed reliance on the ratio laid down by this Court in
the case of Shehnaz Arvind Mudbhatkal Vs. Arvind
Ramkrishna Mudbhatkal reported in 2011(6) Mh. L. J. 719.
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In the said case, this Court observed that the wife was earning
Rs.45,000/- per month as salary and she has received Rs.11
lakhs as back-wages. Her daughters were not dependent on
her. Therefore, this amount is sufficient to the wife for her
maintenance. This Court observed that in such case, the wife
is not entitled for maintenance from the husband. In the
present case, it is seen that the wife is getting more than
Rs.37,500/- per month as interest. She has more than 50 lakhs
in the bank. In addition, the applicant's son is providing money
for her maintenance and other expenses. No one is dependent
on her. Thus, the facts in the decision relied upon and the
facts in the present case are quite similar and the ratio would
apply to the facts of the present case.
11 Looking to the evidence on record, we are of the
opinion that the Judge of the Family Court has rightly held that
the appellant-wife is having sufficient income for her survival
and she has failed to prove that she is entitled for any
maintenance. Thus, we find no merit in the present Appeal.
Appeal is, therefore, dismissed.
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12 In view of dismissal of the Family Court Appeal, Civil
Application Nos. 137 of 2013 and 16 of 2014 do not survive and
are disposed of as such.
[SHRI. P.N.DESHMUKH, J.] [SMT. V.K.TAHILRAMANI, J.]
kandarkar
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