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2011 DIGILAW 1128 (MP)

Amita Pathak v. S. Shiv Prasad

2011-09-23

K.K.LAHOTI, VIMLA JAIN

body2011
JUDGMENT : Vimla Jain, J. The appellant, being aggrieved by the judgment and decree dated 26.2.2010 passed in Civil Suit No. 30-A/2009 by IIIrd Additional District Judge (Fast Track Court) Katni dismissing the suit of the appellant, has filed present first appeal u/s 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). Brief facts of the case are that the marriage of appellant Smt. Amita Pathak was solemnized with respondent S. Shiv Prasad on 15.1.2004 as per Hindu rites, religion and out of their wedlock, no child was born. Initially the appellant and respondent were living together in a joint family in Kerala but after a period of near-about two months, due to some stress, the appellant and respondent started living separately with the consent of their family members. Thereafter, the respondent started misbehaving, abusing, insulting and beating the appellant. He had badly tortured the appellant physically and mentally for two months. When appellant had asked the respondent that why he was behaving in such a manner then respondent told her that he had no proper source of income, therefore, she should get Rupees four or five lakh in dowry from her parents. If she fails, he would continue such bad behaviour. The appellant informed about the demand to her parents and her parents had arranged some money and gave to respondent. The respondent again started insulting and beating the appellant. Consequently, the appellant lodged a report at Police Station, Kottayam on 20.10.2006. The Police had warned the respondent, In the year 2007, the appellant had also informed about the bad behaviour of respondent to her younger brother and asked for his help. Her younger brother came along with his family and lived with the appellant for 20 days. He had also given some money to the respondent. Thereafter, the respondent asked the appellant to give her ornaments amounting to Rs. 5,00,000 for keeping them in a bank locker and started beating the appellant. On 30.4.2007, elder brother of appellant came to her house and suggested the respondent to live peacefully. But the respondent had replied that if he is paid Rs. 5,00,000 then only he would keep the appellant with him otherwise he would kill her. 2. The appellant also alleged that she did not have any physical or sexual relationship with the respondent after the marriage. He did not perform sexual intercourse with her. But the respondent had replied that if he is paid Rs. 5,00,000 then only he would keep the appellant with him otherwise he would kill her. 2. The appellant also alleged that she did not have any physical or sexual relationship with the respondent after the marriage. He did not perform sexual intercourse with her. He had illicit relationship with other ladies. His first wife had committed suicide. The respondent was facing a charge punishable u/s 302 of IPC for murder of his first wife. The respondent had also threatened the appellant that he would commit suicide and falsely implicate her entire family. Being dissatisfied with the respondent, the appellant had filed present suit u/s 13 of the Hindu Marriage Act for seeking divorce against the respondent on the ground of cruelty and that both of them were living separately and there was no possibility of amicable settlement between them in future. 3. The respondent filed the written statement denying the allegations made in the petition and submitted that he had maintained her honour throughout the period she had lived with him in the matrimonial home. He had never demanded dowry. He deposited Rs. 5 lakh in her account. Her brother Amit Pathak had come to Kerala for his honeymoon and her another brother Ajit Pathak had come for treatment. She went to her parental house willfully with her brother Amit Pathak. After marriage, he gifted the ornaments to the appellant. He is running a business of electronic goods and his income is about Rs. 10 lakh per year. The appellant has always enjoyed sexual intercourse. Hence, no ground of divorce is made out and the petition deserves to be dismissed. 4. On the basis of the pleadings of the parties, issues were framed by the Trial Court. Appellant/plaintiff and respondent/defendant adduced the evidence. After appreciation of the evidence, the Trial Court found that no case for divorce is made out and dismissed the petition. Being aggrieved by the impugned judgment and decree, the instant appeal has been preferred on the grounds mentioned in the memo of appeal. 5. The learned Counsel for the appellant submitted that the Court below has not appreciated the evidence in proper manner. The appellant has proved the grounds of cruelty but the Trial Court has erroneously dismissed the petition. 6. 5. The learned Counsel for the appellant submitted that the Court below has not appreciated the evidence in proper manner. The appellant has proved the grounds of cruelty but the Trial Court has erroneously dismissed the petition. 6. No one appeared on behalf of the respondent/defendant in spite of service and an S.P.C sent to him. 7. We perused the record and heard the learned Counsel for the appellant. 8. Appellant/plaintiff Amita Pathak (AW.1) has deposed that her marriage was solemnized on 15.1.2004 and that there had been no physical and sexual relationship with the respondent after the marriage. Respondent did not perform the sexual intercourse with her. Resultantly, she suffered depression and frustration. They resided at Atumanoor in the joint family for sometime and thereafter they resided away from joint family. The respondent always used filthy language, tortured her and demanded dowry. She informed to her parents and they had sent money to the respondent. The appellant lodged a report in the police station regarding the act of respondent. She has also stated that her parents fulfilled the demand of dowry of the respondent but he had not changed his attitude and he had always harassed her physically and mentally. 9. The appellant also stated that she filed a complaint against respondent at Police Station Kottayam. The police arrested him and released him with a warning. She further stated that respondent took away her ornaments amounting to Rs. 5 lakh on the pretext that he would deposit them in the locker of the Bank. But when she enquired about the locker number and name of the Bank, he had beaten her. She also stated that her marriage with respondent has completely broken down with no hope of revival. 10. Ajit Pathak (PW-2) is a brother of the appellant. He supported the statement of the appellant and stated that respondent had physically and mentally harassed the appellant and her family members. He further stated that he has never purchased the vehicle nor executed any documents. He also stated that the amount was deposited in the Bank by the family members of the appellant on the demand of the respondent. But the respondent raised a false plea that amount was paid as sale price of a vehicle. 11. He further stated that he has never purchased the vehicle nor executed any documents. He also stated that the amount was deposited in the Bank by the family members of the appellant on the demand of the respondent. But the respondent raised a false plea that amount was paid as sale price of a vehicle. 11. We have perused these statements but do not find any reason to disbelieve the statements of the appellant and her brother Ajit Pathak (PW-2). 12. Respondent denied all the allegations made against him by the appellant. He has stated that he had not acted cruelly or disrespectfully towards the appellant. In his cross-examination, he has admitted that he did not have any documents relating to sale of vehicle. He did not remember that he had declared such sale in his return of Income Tax. Thus, it is proved that family members of the appellant deposited the amount on the demand of respondent. 13. Cruelty is a ground of divorce u/s 13(1)(a) of the Hindu Marriage Act. We will now consider whether this ground has been proved or not? 14. In Dr. N.G. Dastane Vs. Mrs. S. Dastane, (1975) 2 SCC 326 the Supreme Court has observed thus: that where an allegation of cruelty is made, the inquiry in any case covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It was also pointed out that it was not necessary, as under the English Law, that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. What was required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent. 15. What was required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent. 15. It shall be appropriate to reproduce paragraph 15 of Mamta Goyal v. Ramgopal reported in AIR 2011 Rajasthan 107: 15. It has been stated in the case of Vinita Saxena Vs. Pankaj Pandit, (2006) 3 SCC 778 , that non-consummation of marriage by itself constitutes mental cruelty and good ground to grant divorce. In coming to its conclusion, the Court referred to Sheldon v. Sheldon (1966) 2 AER 257 and approved the following observation from Rita Nijhawan v. Balkishan Nijhawan reported in AIR 1973 Delhi 200: Matrimonial harmony, cohabitation and discharge of marital obligation by one spouse towards other is one of the most essential feature to keep matrimonial bond alive between the parties. When one of the spouses has totally withdrawn from the society of other as also either refusing to cohabit and/or denying to discharge his/her matrimonial obligation towards the other, it will be clear case of cruelty on the part of such spouse to whom such acts are attributable. Where the spouses are of normal physical and mental health, number of persistent refusal or inability of the sexual act would amount to cruelty. The marriage without vigorous sexual activity is an anathema. Denial of sexual activity in marriage has an extremely unfavourable influence on a wife's or husband's mind and body and leads to deprivation and frustration. There is nothing more fatal to a marriage than disappointment in sexual intercourse. To force a husband to such sexless life, which inevitably damages the physical as well as mental health is nothing, but cruelty? 16. In Smt. Shakuntala Kumari v. Om Prakash Ghai AIR 1981 Delhi 53, it has been held thus: A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill-health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it would amount to mental cruelty, especially when the parties are young and newly married. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it would amount to mental cruelty, especially when the parties are young and newly married. 17. In Smt. Maya v. Brij Nath AIR 1982 De 240, while dealing with the concept of cruelty in the Hindu Marriage Act, the Court observed as under: Cruelty has not been defined in the Act. But it is now well settled that the conduct should be grave and weighty so as to make cohabitation virtually unendurable. It must be more serious than the ordinary wear and tear of marriage. The cumulative conduct taking into consideration the circumstances and the background of the parties has to be examined to reach a conclusion whether the act amounts to cruelty. The petitioner in a divorce petition has to prove that he was treated with cruelty. The burden of proving the cruelty lies on him. 18. The Supreme Court in the case of V. Bhagat Vs. Mrs. D. Bhagat, (1994) 1 SCC 337 , has defined mental cruelty in the following manner: Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 19. In Mohini Chawla Vs. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 19. In Mohini Chawla Vs. Subhash Chander Chawla, AIR 2009 P&H 33 , it has been held that: This goes a long way to prove that there was no sexual activity between the appellant and the respondent which would amount to mental as well as physical cruelty to the respondent. It has further come on record that the appellant after her return from Delhi to village Anwal, had remained with the respondent for one night only on each occasion in August and October, 2001 and on those days also, there was no sexual relationship between them. Therefore, the cruelty on the part of the appellant-wife stands proved which alone is a good ground for the grant of decree of divorce. 20. Now we revert to the facts and circumstances of the present case. The Trial Court did not rely upon the evidence of the appellant and believed the deposition of the respondent. The Trial Court concluded that the smiling face of the appellant with her brother and husband in the photographs taken at the time of their visit to Kerela did not show any tension. We do not agree with the finding of the Trial Court that smiling faces in photograph can disprove the cruel behaviour of respondent with the appellant. The facts and circumstances of the case and definite evidence in the case clearly indicate that the view taken by the Trial Court is wrong. 21. It is abundantly clear after considering the evidence available on the record that general conduct and behaviour of the respondent had been cruel and abnormal. He did not even permit the appellant to have normal sexual relationship with him. The Trial Court ignored these facts and thereby committed an error. 22. In the light of the aforesaid pronouncements and the evidence adduced in the case it is manifestly clear that respondent had not have any sexual intercourse with the appellant. This amounts to mental cruelty, apart from this there is ample evidence that the respondent treated the appellant with cruelty, therefore, the appellant successfully proved the ground of cruelty. 22. In the light of the aforesaid pronouncements and the evidence adduced in the case it is manifestly clear that respondent had not have any sexual intercourse with the appellant. This amounts to mental cruelty, apart from this there is ample evidence that the respondent treated the appellant with cruelty, therefore, the appellant successfully proved the ground of cruelty. On the basis of such ground she is entitled for a decree of divorce. Thus, we have no hesitation in reversing the findings of the lower Court. 23. On the basis of foregoing discussion, we find that the findings of the Court below are erroneous and deserve to be set aside. 24. Consequently, the appeal succeeds and is allowed. The judgment and decree passed by the Court below is hereby set aside. The petition filed by the appellant u/s 13(1)(a) of the Hindu Marriage Act, 1955 is hereby allowed and the marriage solemnized between the parties on 15.1.2004 is hereby dissolved by a decree of divorce. Counsel's fee is quantified as per schedule. A decree be drawn up accordingly.