Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 73 (GAU)

Uma Minda v. Sushil Mittal

2009-02-03

A.C.UPADHYAY, AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The appellant having been declined a decree for dissolution of her marriage with the respondent, is before this Court assailing the judgment and order dated 17.2.2004 passed by the learned Principal Judge, Family Court, Kamrup, Guwahati in Case No. FC(Civil)169/2000. 2. We have heard Mr. P. Kataki and Ms. S. Khataniar, advocates for the appellant-wife. The respondent, however, remained unrepresented. 3. A few prefatory facts are essential to be recorded before embarking on the adjudicative process. The instant appeal being a belated one, an application for condonation of the delay was filed, which was registered as MC No. 3620/2004. The notice issued in the said proceeding to the opposite party-respondent by registered post with A/D, having returned unserved with the endorsement "left", this Court on a consideration of all relevant aspects presumed the service to be complete and on a scrutiny of the reasons assigned for the delay, condoned the same by order dated 30.10.2006. 4. The appeal thereafter, was admitted on 23.11.2006 and notices was ordered to be issued on the respondent. The notice, thus, issued again by registered post with A/D to the respondent having been returned with the endorsement "addressee had left", on the prayer made by the appellant, she was permitted to publish the same in two dailies, i.e., the Assam Tribune and Hindustan Times. The notices having been published as ordered, this Court by order dated 10.9.2008 passed in MC No. 2501/2008 accepted the service on the respondent and also permitted the appellant to effect amendments to the memorandum of appeal as sought for by her. Noticeably, even, thereafter, the respondent did not enter appearance in the appeal. The ex-parte hearing of the appeal against him is thus in the above factual premise. 5. The abbreviated pleaded versions of the parties are considered indispensable for appropriately evaluating the arguments advanced. The appellant instituted the proceeding before the learned court below under Section 7 of the Family Courts Act, 1955 for a grant of a decree of divorce against the respondent, alleging cruelty. According to her, the parties were married through Hindu religious rites on 26.11.1996 at Guwahati, whereafter, they initiated their matrimonial home at Bongaigaon. Contending that they are issue less, the appellant alleged that the respondent-husband had deserted her on 16.2.2000 without any reasonable cause and excuse and since then she had been living with her parents at Guwahati. According to her, the parties were married through Hindu religious rites on 26.11.1996 at Guwahati, whereafter, they initiated their matrimonial home at Bongaigaon. Contending that they are issue less, the appellant alleged that the respondent-husband had deserted her on 16.2.2000 without any reasonable cause and excuse and since then she had been living with her parents at Guwahati. She has intensely imputed that since after the solemnisation of their marriage, the respondent used to treat her with cruelty, so much so that he used to drive her away from the conjugal home now and then on trifling issues. The appellant branded the respondent-husband as a greedy and inhuman person and accused him of having mounted constant pressure on her for dowry from the first day of the marriage. She also alleged humiliation and abuses by him in public, as well as before his family members condemning her as lethargic and worthless. She alleged that he used to be brazenly discourteous and rude to her family members and also did not allow her beyond the matrimonial house or interaction with any outsider. Citing instances of such dowry demands and satiation thereof in spite of the distressful financial condition of her parents, the appellant also charged the respondent-husband of denying food and other basic amenities essential for a dignified human existence. Attempts by him (respondent-husband) to misappropriate her personal savings, was also made. According to the appellant-wife these persistent acts of intolerable torture and agony filled her mind with irreversible apprehension and fear, so much so that continuance of the marriage and his companionship stalked her as a hazard to her life and safety. Several endeavours for reconciliation failed as the respondent-husband displayed a defiant and incorrigible disposition. The dissolution was sought for on these accusations. 6. The respondent, in his written statement categorically denied each and every allegation leveled against him. Noticeably, however, he refrained from narrating his reactions vis-a-vis the wife-appellant. In other words, the respondent-husband did not put forth any positive case of his own. 7. The learned trial court framed the following issues: (1) Whether the respondent, Sri Sushil Mittal had cruelly treated the petitioner-Smt. Uma Mittal? (2) Whether the petitioner is entitled to get a decree of divorce as prayed for? (3) To what relief/reliefs, the parties are entitled? 8. 7. The learned trial court framed the following issues: (1) Whether the respondent, Sri Sushil Mittal had cruelly treated the petitioner-Smt. Uma Mittal? (2) Whether the petitioner is entitled to get a decree of divorce as prayed for? (3) To what relief/reliefs, the parties are entitled? 8. To prove their respective cases, the appellant-plaintiff examined herself and three other witnesses and the respondent-husband responded by his testimony. The learned court below on a consideration of the pleadings of the parties and the evidence on record, by the impugned judgment and order, dismissed the petition, holding that the allegation of cruelty had not been proved principally on the ground that the evidence of the appellant-wife authenticating the same as narrated in the pleadings, had not been corroborated by her other witnesses. 9. The Learned Counsel for the appellant-wife have strenuously urged that having regard to the state of the pleadings and the evidence on record, the indictment of cruelty within meaning of Section 13(3)(ia) of the Hindu Marriage Act, 1955 ('the Act'), had been proved and, therefore, the learned court below erred in law and on facts in concluding to the contrary. As the testimony of the appellant-wife and her witnesses corroborating the same in a material particulars, had remained unshaken in cross-examination and it being evident therefrom that continuance of the marriage would be detrimental to the life and safety of the wife, the learned Family Court ought to have granted the decree of divorce, they urged. According to them, the learned court below totally misconstrued the concept of cruelty as comprehended in Section 13(3)(ia) of the Act, as well as the degree of proof required in a civil proceeding in denying the dissolution of marriage, as prayed for and this having vitiated the impugned judgment and order with an incurable illegality, the same is liable to be set aside. The learned Counsel for the appellant urged that in the facts and circumstances of the case, considering the nature of the jurisdiction being exercised by this Court, on an analysis of the materials on record, the decree for divorce be granted in the appeal in the interest of justice. 10. We have extended our thoughtful consideration to the arguments advanced. The rival pleadings have already been noted as above. 10. We have extended our thoughtful consideration to the arguments advanced. The rival pleadings have already been noted as above. As alluded hereinabove, the respondent-husband apart from recording his denials to the imputations made, did not set out any reason for the appellant-wife to have acrimoniously heaped him therewith. There is no counter remonstrance of his against her. It is, therefore, really intriguing as to why the wife would venture to malign the husband with such vengeance condemning him, inter alia, as inhuman, greedy, uncivil and torturous, so much so to be agonizing, unbearable, repulsive and unsafe to be lived with. 11. The decision of the Apex Court in Shobha Rani v. Madhukar Reddi (1998) 1 SCC 105, relied upon by the Learned Counsel for the appellant elucidates the concept of cruelty envisaged in Section 13(3)(ia) of the Act, as in the following extract: 4. Section 13(1)(ia) uses the words "treated the petitioner with cruelty". The word "cruelty has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. It is mental the problem presents difficulty, first, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. Their lordships emphasized on two essentialities, namely, the nature of the treatment and the impact thereof on the mind of the complaining spouse. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. Their lordships emphasized on two essentialities, namely, the nature of the treatment and the impact thereof on the mind of the complaining spouse. The observation of Lord Dening (1966) 2 ALL 257, 259, "the categories of cruelty are not closed", was referred to conclude that among human beings there is no limit to the kind of conduct, which may constitute cruelty. While noticing the definition of the offence of cruelty under Section 498A of the Indian Penal Code, in the context of Section 13(1)(ia) of the Act, it was held that if the intention to harm, harass or hurt can be inferred by the nature of the conduct or brutal act complained of, cruelty can be said to have been established. In the contextual facts, their lordships held that demand for dowry is prohibited in law and that a persistent insistence therefor, amounted to cruelty entitling the wife to a decree for dissolution of marriage. 12. The appellant-wife, in her statement on oath, testified that after the marriage, the respondent did not provide her with clothes and used to misbehave with her. According to her, he used to stop talking to her and also assault her. She was categorical in stating that the respondent-husband used to harass her in connection with demand for money, which she used to silently bear. She provided instances of her assaults and quarrels, as well as demands for dowry. She complained of being denied the basic amenities of life and maintenance. She also complained of insufficient and sub-standard food and eventual desertion by him. In cross-examination, she was only confronted with suggestions to neutrilise the allegations made. She, however, expressed her mind against returning to her husband's house, reiterating that he used to assault her. 13. Smt. Anjana Sarkar, witness No. 2 of the appellant-plaintiff and neighbour referred to a quarrel between her (appellant) and her husband-respondent. She of course stated against seeing any assault. 14. The mother of the appellant Kamala Devi Minda examined as PW 3, confirmed the charge of torture on her daughter for her failure to bring expensive clothes and articles in the form of dowry. She of course stated against seeing any assault. 14. The mother of the appellant Kamala Devi Minda examined as PW 3, confirmed the charge of torture on her daughter for her failure to bring expensive clothes and articles in the form of dowry. Rajesh Minda, brother of the appellant (PW-4) testified that the respondent-husband abused her (appellant-wife) as well as his mother on one occasion over some jewellery of his sister. 15. The respondent-husband stated on oath that he had taken the appellant-wife once to her parents' house as per her wish and when his father came to Guwahati to take her back, she refused to accompany him. He denied to have assaulted the appellant or demanded dowry from her. 16. Having regard to the fact that the proceedings in hand is civil in nature, the allegation of cruelty is required to be proved on the touchstone of preponderance of probabilities and not on the rigour of proof beyond reasonable doubt as in criminal cases. In view of unequivocal and categorical averments made in the plaint detailing the disagreeable acts and conduct of the respondent-husband, which according to us, have been substantially endorsed by the appellant-wife in her testimony, in our considered opinion by applying the measure of proof in civil proceedings noticed hereinabove, the conclusion of the learned court below cannot be sustained. The pleaded averments in the plaint read with the evidence of the appellant supported by the evidence of her other witnesses to the extent as recorded hereinabove, demonstrate a disposition of the respondent-husband likely to create a frightful, agonizing and tormenting impact on the mind of the appellant-wife creating an irresoluble aversion to his company and the disintegrating nuptial alliance. Her revulsion to return to the matrimonial home is apparent from her statement to that effect at the I trial and can reasonably be traced to her deep rooted alarm of, reliving the past macabre experience replete with distress, horror and privation. On a scrutiny of the pleadings of the parties and evidence on record, we cannot persuade ourselves to disbelieve the allegations leveled by the appellant wife. 17. No reason for falsely inculpating the respondent-husband is perceptible. The accusations, which we are inclined to accept as true and proved as required in law constitute cruelty as envisioned in Section 13(1)(ia) of the Act. 17. No reason for falsely inculpating the respondent-husband is perceptible. The accusations, which we are inclined to accept as true and proved as required in law constitute cruelty as envisioned in Section 13(1)(ia) of the Act. In the environment as described by the appellant-wife, her return thereto could only signify her subjection to renewed intimidation, tormentation and indescribable ordeals leading to disastrously fatal consequences. Significantly, the respondent-husband by his conduct of abstention from this proceeding has failed to prove the bona fide of his stand of receiving her back with dignity and respect, as deserving of a married wife in the contemporaneous Indian society. The allegation of cruelty as made has to be viewed through the prism of life's hard realities, the legislative intendment not being to mandate unrealistic and impractical imperatives to render the ground illusory. The learned court below, in our estimate had failed to approach the pleadings of the parties and their evidence in the correct legal perspective. The impugned judgment and order thus, cannot be sustained and is interfered with. We construe the pleadings and the materials on record to be adequate to grant the decree for dissolution of the marriage on the ground of cruelty. The appeal is allowed. We, hereby, grant the decree for dissolution of marriage between the parties on the ground of cruelty. 18. The Office would draw up the decree accordingly and thereafter, remit the records to the learned court below. In the facts and circumstances, we leave the parties to bear their own costs. Appeal allowed.