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2007 DIGILAW 1893 (PNJ)

Dharam Paul v. Maina Devi

2007-10-19

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. - This appeal under the Hindu Marriage Act has been filed against the judgment and decree dated 4.11.1995 passed by the learned Additional District Judge, Sirsa, dismissing the petition filed by the petitioner-appellant under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). 2. The appellant-petitioner Dharam Paul sought the dissolution of marriage with respondent on the ground that the marriage between the parties was performed in the year 1981 at village Darba Kalan as per Hindu rites and ceremonies. After solemnisation of the marriage, the parties lived together as husband and wife and no child was born out of the said wedlock. It was claimed that the marriage was a simple affair and no dowry was given or taken except few wearing clothes and utensils. It was further claimed that the wife was of quarrelsome nature having harsh temperament. She treated the petitioner- appellant and his family members with utmost cruelty during the entire period of her stay with the petitioner-appellant. It was also alleged that she used to quarrel with the petitioner-appellant and his family members even on patty matters and create a scene, as and when she was asked to behave properly. It was also the case of the petitioner-appellant that she used to refuse to prepare meals and tea etc. for the petitioner. It was claimed that she wanted the petitioner-appellant to leave his parental house and to shift to her parents house. It was alleged that the respondent was in the habit of visiting her parents house without the consent of the petitioner. It was also claimed that the respondent used to give threats to the petitioner-appellant that in case he did not reside in the house of the respondent, she would commit suicide and would falsely involve the petitioner and his family members in criminal cases. It was further claimed that the respondent left the house of the petitioner-appellant in the month of March, 1988 and did not come back in spite of best efforts of the petitioner. Thus, it was claimed that the respondent deserted the petitioner without any reasonable cause. 3. It was further claimed that the respondent left the house of the petitioner-appellant in the month of March, 1988 and did not come back in spite of best efforts of the petitioner. Thus, it was claimed that the respondent deserted the petitioner without any reasonable cause. 3. It was also the case of the petitioner-appellant that attempt of the petitioner to bring back the respondent failed, but on the contrary a false case under Section 498-A of the Indian Penal Code was registered by the parents of the respondent against the petitioner, his brother Rameshwar and other family members in which they were convicted and sentenced by the Court of Shri Surender Kumar, Judicial Magistrate Ist Class, Sirsa, on 7.1.1991. However, in appeal, they were acquitted by the Court of Additional Sessions Judge, Sirsa, on 8.4.1991. Therefore, it was claimed that the petitioner- appellant was entitled to a decree of divorce on the ground of desertion and cruelty. 4. The petition was contested by the respondent-wife, where all the allegations levelled by the petitioner-appellant were denied. It was claimed by the respondent that the petitioner had turned her out of the house after giving her beatings for want of sufficient dowry. It was further claimed that she always treated the petitioner-appellant and his family members with respect and never showed any disrespect. The allegation of desertion was denied. It was also claimed that the family members of the petitioner- appellant always taunted the respondent for want of adequate dowry. It was also the case of the respondent that she filed an application under Section 125 of the Code of Criminal Procedure against the petitioner-appellant before filing the present petition of divorce. In the said application, she was granted maintenance @ Rs. 200/- per month. It was further claimed that the case under Section 498-A, IPC was based on true facts. However, it was admitted that though the appellant and his family members were convicted by the learned Judicial Magistrate Ist Class, Sirsa, but they were acquitted by the Additional Sessions Judge, Sirsa, against which the matter is pending in this Court. However, it was an admitted case of the parties that the petition filed by the respondent-wife against the judgment of the Appellate Court in the High Court also stands dismissed. 5. However, it was an admitted case of the parties that the petition filed by the respondent-wife against the judgment of the Appellate Court in the High Court also stands dismissed. 5. In the replication the allegations made in the petition were reiterated and that of the written statement were denied. On the pleadings of the parties, following issues were framed :- "1. Whether the respondent had treated the petitioner with cruelty as alleged in the petition ? If so to what effect ? OPR 2. Whether the respondent had deserted the petitioner continuously since March, 1988 ? If so to what effect ? OPP 3. Whether the petitioner has no locus standi to file this petition as alleged in preliminary objection No. 1 ? OPP 4. Whether the petition was not maintainable ? OPR 5. Whether the petitioner was estopped from filing this petition on account of his own acts and conduct ? OPR 6. Whether the respondent is entitled to get special costs. If so, how much ? OPR 7. Relief." Issue Nos. 1 and 2 were taken up together and it was observed that a petition under Section 125 of the Code of Criminal Procedure against the petitioner- appellant was filed and the respondent was getting maintenance in the said petition. It was further observed that a criminal case was got registered by the respondent-wife against the petitioner-appellant and his family members in which they were convicted and sentenced by the Judicial Magistrate Ist Class, but subsequently acquitted by the Additional Sessions Judge, Sirsa. This important aspect of the matter was ignored in view of the fact that the said case was said to be pending before the High Court for final decision. 6. The learned Matrimonial Court also came to the conclusion that the facts i.e. lodging of criminal case and filing of petition under Section 125 Criminal Procedure Code showed that the petitioner-appellant was harassing the respondent-wife for bringing less dowry and it was on account of that that she was turned out of the matrimonial house. The learned Matrimonial Court also came to the conclusion that no person from the village came forward to support the petitioner-appellant in the criminal case and self-serving statement of the petitioner, which was supported by his close relative, was of no consequence. The learned Matrimonial Court also came to the conclusion that no person from the village came forward to support the petitioner-appellant in the criminal case and self-serving statement of the petitioner, which was supported by his close relative, was of no consequence. It was also held that, on the other hand, the respondent was able to prove the harassment and beating by the petitioner and in view of this, issue Nos. 1 and 2 were decided in favour of the respondent-wife. 7. In view of the findings recorded on issue Nos. 1 and 2, issue Nos. 3 and 4 were also decided against the petitioner. Similarly, issue No. 5 was also decided against the petitioner-husband and in favour of the respondent-wife. However, issue No. 6 was decided against the respondent-wife and resultantly, the petition was dismissed. 8. Mr. L.N. Verma, learned counsel appearing on behalf of the petitioner- appellant, has challenged the findings on issue No. 1 on the ground that the wife had initiated false criminal proceedings against the petitioner-appellant and his family members. On account of the allegations of cruelty and desertion, the appellant and his family members were arrested and put to great inconvenience. The respondent-wife even supported the said allegations before the criminal Court which resulted in conviction of the petitioner-appellant as well as his family members and it was in appeal that the said allegations were found to be false and the petitioner-appellant and his family members were acquitted of the charges by recording a positive finding that the allegation regarding demand of dowry after passage of so many years of marriage could not be believed to be true. 9. The contention of the learned counsel for the appellant, therefore, was that the learned Matrimonial Court wrongly brushed aside this important aspect of the matter, merely on the ground, that the matter was pending before the High Court. However, the petition by the respondent-wife before the High Court also failed. Learned counsel for the appellant, therefore, contended that this act of false implication of the petitioner-appellant, amounted to cruelty as defined under Section 13(1)(i-a) of the Act. However, the petition by the respondent-wife before the High Court also failed. Learned counsel for the appellant, therefore, contended that this act of false implication of the petitioner-appellant, amounted to cruelty as defined under Section 13(1)(i-a) of the Act. In support of this contention, reliance was placed on the judgment of the Honble Rajasthan High Court in the case of Narender Kumar Gupta v. Smt. Indu, 2002(2) RCR(Civil) 32; Smt. Kiran Kapoor v. Surinder Kumar Kapoor, 1982 HLR 379, which is the judgment of the Honble Delhi High Court, Krishna Rai v. Chuni Lal Gulati, 1981 HLR 16, which is the judgment of this Court and the judgment of the Honble Supreme Court in the case of Shobha Rani v. Madhukar Reddy, AIR 1988 SC 121. 10. Learned counsel for the appellant also contended that the marriage between the parties has been irretrievably broken down as they are living separately sine 1988. The offer made by the appellant for permanent alimony was not accepted by the respondent-wife. It was also the case of the appellant that willingness of the wife to live with him under the given circumstances cannot be said to be genuine and is merely an attempt to defeat the claim of the appellant. In support of this contention, reliance has been placed on the judgment of the Honble Supreme Court in the case of Rishi Kesh Sharma v. Saroj Sharma, 2007(1) RAJ 134 , wherein the Honble Supreme Court has been pleased to lay down as under :- "We heard Mr. A.K. Chitale, learned senior counsel and Mr. S.S. Dahiya, learned counsel for the respondent and perused the judgment passed by both the trial Court and also of the High Court. It is not in dispute that the respondent is living separately from the year 1981. Though the finding has been rendered by the High Court that the wife last resided with her husband upto 25.3.1989, the said finding according to the learned counsel for the appellant is not correct. In view of the several litigations between the parties, it is not possible for her to prosecute criminal case against the husband and at the same time continue to reside with her husband. In the instant case the marriage is irretrievably broken down with no possibility of the parties living together again. Both the parties have crossed 49 years and living separately and working independently since 1981. In the instant case the marriage is irretrievably broken down with no possibility of the parties living together again. Both the parties have crossed 49 years and living separately and working independently since 1981. There being a history of litigation with respondent-wife repeatedly filing criminal cases against the appellant which could not be substantiated as found by the Court. This apart, only child born in the wedlock in 1975 has already been given in marriage. Under such circumstances the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant. This apart, the wife also has made certain allegations against her husband, that the husband has already remarried and is living with another lady as stated by her in the written statement. The High Court also has not considered the allegations made by the respondent which have been repeatedly made and repeatedly found baseless by the Courts." 11. Learned counsel for the appellant by placing reliance on the judgment of the Honble Supreme Court in the case of A. Jayachandra v. Aneel Kaur, AIR 2005 Supreme Court 534 contended that the marriage between the parties has broken down irretrievably and, therefore, the petitioner-appellant is entitled to divorce. He made reference to para 17 of the judgment, which reads as under :- "Several decisions, as noted above, cited by learned counsel for the respondent to contend even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases, it has been categorically held that in extreme cases the Court can direct dissolution of marriage on the ground that the marriage had broken down irretrievably as is clear from paragraph 9 of Shyam Sunders case (supra). The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of the husbands conduct. In Shyam Sunders case (supra) it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. In Shyam Sunders case (supra) it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long-drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves, those were exceptional cases." 12. Learned counsel for the appellant thereafter placed reliance on the judgment of the Honble Supreme Court in the case of Durga Parsanna Tripathy v. Arundhati Tripathy, AIR 2005 SC 3297 to contend that keeping in view the fact that the parties are living separately since 1988, therefore, the decree of divorce should be granted on the ground of desertion. Paras 29 and 30 of the said judgment read as under :- "29. The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot. 30. Before parting with this case, we think it necessary to say the following : Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs. 50,000/- towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs. 1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent-Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent." 13. On the other hand, Mr. Sanjiv Gupta, learned counsel appearing on behalf of the respondent-wife, contended that the appellant had failed to prove the ground of cruelty or desertion and, therefore, the order passed by the learned Matrimonial Court does not call for any interference. The contention of the learned counsel for the respondent was that the only grievance of the appellant-husband was that the respondent-wife was demanding a separate residence. This demand could not be said to be cruelty. In support of this contention, reliance was placed on the judgment of this Court in the case of Rakesh Goyal v. Deepika Goyal, 2006(2) PLR 156, wherein it has been held as under :- "Besides, we can also not be oblivious of the present day trend in the society, which, in most of the newly-wed ladies, is to have privacy in their married lives, and for that, they want to live separately from in-laws. Such a desire on their part cannot, in my view, be termed as an act of cruelty towards their husbands. In Smt. Shashi Shah v. Kiran Kumar Shah, 1999(2) Civil Court Cases 664 (Allahabad) also a similar view was taken by observing that "mere pressure by a wife on the husband to live separately from the parents is not a sufficient ground for divorce or cruelty. In Smt. Shashi Shah v. Kiran Kumar Shah, 1999(2) Civil Court Cases 664 (Allahabad) also a similar view was taken by observing that "mere pressure by a wife on the husband to live separately from the parents is not a sufficient ground for divorce or cruelty. If that is held to be so, it would create a chaos in the society and so many marriages would break. Sons duty to parents is not diluted and he is bound to look after his parents but he has to do so as far as possible because he has not to disturb the peace of his mind after his marriage if the wife wants to live separately from his parents." 14. The contention of the learned counsel for the respondent further was that in the petition as well as in the evidence led, the allegations of cruelty were general in nature and, therefore, cannot be said to be an act of cruelty even if believed to be true for the sake of arguments. In support of this contentions, he placed reliance on the judgment of this Court in the case of Sunil Kumar v. Smt. Reshmi, 2006(3) PLR 755. He also by placing reliance on this judgment contended that the claim of irretrievably broken marriage cannot be accepted as this is not a statutorily recognised ground. Paras 11 and 12 of the said judgment read as under :- "11. Seen in the light of above law laid down by Supreme Court, it can be said that the allegations made by the appellant would at the most only show that there were occasional outburst of anger, rude language or austerity of temper, which may amount to a misconduct but cannot be termed as cruelty. Though the parties are living apart but it is with mutual arrangement and the possibility of their living together cannot be ruled out. Rather, the wife is willing to live with the appellant-husband. 12. Shri Ashok Aggarwal, learned counsel appearing for the appellant submitted before me that this marriage had in fact been irretrievably broken down and it would be exercise in futility to allow this marriage to continue. As per the counsel, it would be in the interest of both the parties that this marriage should come to an end. 12. Shri Ashok Aggarwal, learned counsel appearing for the appellant submitted before me that this marriage had in fact been irretrievably broken down and it would be exercise in futility to allow this marriage to continue. As per the counsel, it would be in the interest of both the parties that this marriage should come to an end. He has drawn my attention to the Supreme Court decision in the case of Naveen Kohli v. Neetu Kohli, 2006(4) SCC 558, in support of his submission. I find that this judgment will not be fully attracted in this case. This was a case where Honble Supreme Court found, having regard to the facts of the case, that wife had treated the husband with cruelty. Court further held that each case has to be decided on its own merits. Commenting upon the aspects of irretrievable breakdown of marriage, the Honble Supreme Court observed that it should be a statutory ground for divorce and Parliament was commended to pass such an amendment. These are thus only recommendations and cannot be a ground to grant divorce by this Court. Moreover, in the present case, it cannot be said that the marriage has irretrievably broken down. Parties are staying separately with mutual agreement. Wife is still willing to join the husband. The allegations of cruelty levelled by the husband are too general in nature and would not indicate that the wife had treated the husband with cruelty. In short, the appellant has not been able to establish the ground of cruelty on the basis of evidence produced by him. On the other hand, wife has succeeded in proving her stand against the allegations made by the appellant husband. Thus, the appellant cannot seek any support from the case of Naveen Kohli (supra). It appears that the appellant somehow is wanting to get rid of his legally wedded wife. The assertion of respondent that appellant is having some relationship outside the marriage also cannot be easily discounted. To hold that the marriage has irretrievably broken down in this background may amount to adding premium to the misconduct of the appellant. As already noticed, irretrievable breaking down of marriage is yet not a statutorily recognised ground of divorce under the Hindu Marriage Act. Accordingly, I do not find any substance in the submission of the counsel for the appellant on this count." 15. As already noticed, irretrievable breaking down of marriage is yet not a statutorily recognised ground of divorce under the Hindu Marriage Act. Accordingly, I do not find any substance in the submission of the counsel for the appellant on this count." 15. Learned counsel for the respondent also placed reliance on the judgment of this Court in the case of Balwinder Pal v. Anita Kumari, 2007(1) PLR 832 to contend that the ground of irretrievably broken marriage cannot be a ground of divorce. Para 8 of the said judgment reads as under :- "Faced with this situation, it has now been contended that the marriage between the parties has broken irretrievably and in such like cases, divorce can be granted. This contention is again meritless. This is not one of the grounds provided under the Act on which marriage between the parties can be dissolved by way of decree of divorce. It is really a facet or an extension of the concept of mental cruelty. It is true that the Court is inclined to grant divorce in case of broken marriage but is only when it is impossible for the litigating spouse to live together because of the acts committed by one of the parties which had psychologically affected the other to the extent that he had developed repulsion to the other side. However, the said position does not exist here. In the instant case, it has been found from the evidence on record that the appellant-husband is not willing at all to live with the respondent- wife any more. On the other hand, respondent-wife is still willing to live with her husband. In this background, in the facts enumerated above, the appellant-husband cannot get decree of divorce relying on the theory that the marriage between the parties has irretrievably broken down. Emphasis is from the case of Dipak Kumar v. Smt. Sima Sarkar, 2005(1) HLR 730. In Birbal Goswami v. Indra Devi, 1997 Marriage Law Journal 415, it was found that the wife is willing to live with the husband and the husband levelled false charges to get rid of her and it was held that he cannot seek divorce on that ground and dismissal of the divorce petition was upheld. In Birbal Goswami v. Indra Devi, 1997 Marriage Law Journal 415, it was found that the wife is willing to live with the husband and the husband levelled false charges to get rid of her and it was held that he cannot seek divorce on that ground and dismissal of the divorce petition was upheld. In Rupinder Kaur v. G.S. Sandhu, 1997(3) 117 PLR 553, it was held that assuming that the marriage had broken irretrievably, irretrievable break-down of marriage is no ground to dissolve the marriage." 16. Finally, it was argued by the learned counsel for the respondent that in order to succeed on the ground of cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. The allegation has to be something more serious than ordinary wear and tear of married life. In support of this contention, reliance was placed on the judgment of the Honble Supreme Court in A. Jaychandras case (supra). 17. I have considered the arguments raised by the learned counsel for the parties and find no force in the contention raised by the learned counsel for the appellant that he is entitled to a decree of divorce on the ground that the marriage between the parties has irretrievably broken down. It is settled law that no divorce can be granted on this ground. 18. However, the divorce petition deserves to succeed on the ground of cruelty, once it is proved on record that a case under Section 498-A of the Indian Penal Code was got registered by the respondent-wife against the appellant-husband and his family members in which they were arrested and humiliated. The allegations were supported by the respondent-wife before the criminal Court which resulted in conviction of the husband as well his family members. However, the said allegations and the charge framed were found to be unsustainable by the Appellate Court and the appellant-husband and his family members were acquitted of the charges not by giving the benefit of doubt but by holding that the allegations levelled were not correct. 19. In this view of matter, the cruelty by the wife against the husband stood duly proved. The false allegations and institution of criminal proceedings which were found to be unjustified and baseless are certainly constituting cruelty. 19. In this view of matter, the cruelty by the wife against the husband stood duly proved. The false allegations and institution of criminal proceedings which were found to be unjustified and baseless are certainly constituting cruelty. The matrimonial Court has overlooked this important aspect of the matter merely because the matter was pending before this Court as criminal revision against the judgment passed by the learned Additional Sessions Judge. However, after the dismissal of the petition by this Court, it has to be held that the wife has treated the appellant-husband with cruelty, which entitles him to get a decree of divorce. 20. It is also not in dispute that the parties have been living separately since 1988 and during this period criminal proceedings were also initiated against the appellant-husband as well as his family members. Mere showing of willingness in Court by the wife to accompany her husband cannot be treated to be genuine as held by the Honble Supreme Court in Rishikesh Sharmas case (supra). Thus, it can even safely be held that the appellant-husband was entitled to a decree of divorce even on the ground of desertion. The pleas raised by the learned counsel for the respondent-wife that appellant has failed to prove cruelty and desertion deserve to be rejected. There can be no dispute with regard to the contentions raised by the learned counsel for the respondent duly supported by the authorities relied upon by him, but those pleas are not available in view of proved desertion and cruelty. 21. As already held above, it is not a case where allegations of cruelty are based on normal wear and tear of matrimonial home, but are on account of fact that a false criminal case was registered against the appellant-husband and his family members and they had to face frivolous criminal litigation for a number of years, which amounted to an act of cruelty. In view of proved fact that the parties are living separately since 1988 and there is no chance of reconciliation, the desertion also stands proved in view of law laid down in Rishikesh Sharmas case (supra). 22. It may be noticed that appellant-husband had made an offer to pay permanent alimony which was not accepted by the wife. In view of proved fact that the parties are living separately since 1988 and there is no chance of reconciliation, the desertion also stands proved in view of law laid down in Rishikesh Sharmas case (supra). 22. It may be noticed that appellant-husband had made an offer to pay permanent alimony which was not accepted by the wife. However, mere refusal of this offer by the wife cannot be a ground to deny her permanent alimony to which she is entitled to under Section 25 of the Act. Keeping in view the status of the appellants family and the holdings held by them, I order a lump-sum payment of amount of Rs. 2,00,000/- (Rs. two lacs) as permanent alimony in favour of the respondent-wife. 23. In view of what has been stated and discussed above, this appeal is accepted, the judgment and decree passed by the learned Matrimonial Court is set aside and the petition filed under Section 13 of the Act stands allowed and the marriage between the parties is ordered to be dissolved by a decree of divorce. The respondent wife shall be entitled to permanent alimony of Rs. 2 lacs, which is directed to be paid within two months from the date of receipt of certified copy of judgment. Appeal allowed.