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2012 DIGILAW 509 (RAJ)

Kailash Deo v. Shanti

2012-02-22

VINEET KOTHARI

body2012
Hon'ble KOTHARI, J.—Heard learned counsels for the parties. 2. The appellant-husband, Kailash Deo Rajpurohit, has filed the present appeal under Section 28 of the Hindu Marriage Act, 1955 (for brevity, hereinafter referred to as `Act') being aggrieved by the judgment dated 3.6.2004 of the learned District Judge, Pali, rejecting his divorce petition under Section 13 of the Act in Civil Misc. Case No. 128/1995 (Kailash Deo vs. Smt. Shanti). 3. Marriage between appellant-Kailash Deo and respondent Shanti took place as per Hindu rites on 4.12.1986 at Village Madri, District Pali and out of said wedlock there was no issue. According to appellant, the respondent-wife lived with him at Desuri for about ten days and thereafter she went to her parents home and returned back in the month of September, 1987 only, and thereafter she kept on coming and going back. However, in the year 1988, after going back to her parents' home, she stayed there for one and half years and when she returned back instead staying in the matrimonial home, she stayed with her father in the house of one Bheek Singh. Thereafter, she started pressing upon the appellant-husband that he should leave the Government job of teacher and should live in Bombay with respondents brother, namely, Babu Singh, who was doing business there. It was further alleged that on 13.9.1990 by taking out a production warrant under Section 97 of Cr.P.C., the police officials along-with brother of the respondent, Babu Singh came to the residential house of the appellant and took her away on 15.9.1990. Thereafter, the respondent-wife filed an application under Section 125 Cr.P.C. for maintenance and on 16.9.1990 filed a complaint under Sections 498-A and 406 of IPC against the appellant-husband and his parents and sister. It was further alleged that since, 14.9.1990, the parties are living separately and consequently, on the ground of cruelty and desertion, the present divorce petition under Section 13 of the Act was filed by the appellant-husband seeking divorce. 4. The said divorce petition under Section 13 of the Act was contested by the respondent-wife and it was alleged in the reply that her in-laws' place, the behaviour of the appellant and his family members was very cruel against her and they harassed her for dowry. 4. The said divorce petition under Section 13 of the Act was contested by the respondent-wife and it was alleged in the reply that her in-laws' place, the behaviour of the appellant and his family members was very cruel against her and they harassed her for dowry. She was not given enough food and was not allowed to take bath even for one month or so, and she was not allowed to live normal life with her husband and cohabit with her. Therefore, being harassed in such manner, she was constrained to leave the matrimonial home and started living with her father. It was further stated that she belonging to "Rajpurohit" community and there is no custom of re-marriage or "Nata" marriage and she always tried to restore the normalcy in her matrimonial home and go back to matrimonial home but the appellant-husband had not cared to take her back in the matrimonial home and under these compelling circumstances, she had to launch the proceedings under Section 125 Cr.P.C. for seeking maintenance and also filed complaint under Sections 498-A and 406 of IPC. It was also stated that her "Stridhan" like gold ornaments weighing about 20-25 "Tolas" and clothes and silver articles with iron box were still lying with the appellant-husband and she has not voluntarily left her matrimonial home without reasonable cause. Therefore, no ground of desertion or cruelty for seeking divorce is made out. It was further alleged that she is still willing to go back to the matrimonial home. It was further stated that on the other hand, the appellant-husband and her relatives have caused cruelty upon her. 5. The learned court below after framing various issues and taking evidence by recording the statements of various witnesses, by the impugned judgment dated 3.6.2004 ultimately found that the appellant-husband under Section 13 of the Act had no ground for seeking divorce, namely, desertion and cruelty were not proved and, therefore, the divorce petition was liable to be rejected and the same was accordingly rejected. 6. Being aggrieved by the same, the appellant-husband has filed this appeal. 7. 6. Being aggrieved by the same, the appellant-husband has filed this appeal. 7. During the pendency of this appeal before this Court since the year 2004, the various benches of this Court also made efforts for reconciliation between the parties but could not succeed and the appellant-husband, consistently refused to take back the respondent-wife in the matrimonial home, however, he expressed his willingness to pay payment alimony even to the extent of Rs. 7.50 lacs, which offer was not acceptable to the respondent-wife; and she insisted going back to the husband's home, and therefore, the appeal was heard on its own merits. 8. Mr. I.R. Choudhary, learned counsel for the appellant-husband submitted that the learned court has not appreciated the evidence on record correctly and not only the ground of cruelty and desertion were established by the appellant-husband entitling him to the decree of divorce but in view of admitted position that the parties are living separately without any cohabitation for last more than 20 years since 1990, in view of irretrievable breakdown of the marriage, divorce decree deserves to be granted. He relied upon certain Supreme Court judgments in support of this proposition. 9. Taking further through the evidence and statements of the respondent-wife vide Exhibit 3/A recorded on 15.9.1990, the learned counsel for the appellant submitted that it was admitted by the respondent-wife that her husband, appellant herein, never harassed nor caused any cruelty upon her and without any valid reason, she left the matrimonial home. Therefore, it clearly amounted to desertion without any reasonable cause and filing of false cases under Sections 498-A and 406 of IPC and even the appellant was unnecessarily roped in besides his parents who had to face the trial, obtain bail and ultimately while he was acquitted. The parents were convicted in the said trial and were released only on probation and thus a great mental cruelty and harassment was caused to the appellant-husband and his family members in this regard. She insisted upon him that he should leave the job and live separately at Bombay and do business with her brother Babu Singh, which was not acceptable to him. Consequently, the divorce decree deserves to granted in favour of appellant-husband and the learned trial Court has grossly erred in rejecting divorce petition. He relied upon the following judgments, which will be discussed hereinafter. 1. Consequently, the divorce decree deserves to granted in favour of appellant-husband and the learned trial Court has grossly erred in rejecting divorce petition. He relied upon the following judgments, which will be discussed hereinafter. 1. Naveen Kohli vs. Neelu Kohli reported in AIR 2006 SC 1675 = RLW 2006(3) SC 1892. 2. Rakesh Sharma vs. Surbhi Sharma reported in 2003 (1) DNJ (Raj.) 184 = RLW 2003(1) Raj. 338. 3. Satish Sitole vs. Ganga reported in AIR 2008 SC 3093 . 4. Smt. Shimla Devi vs. Kuldeep Sharma reported in 1999 (3) WLC (Raj.) 285 = RLW 1992) Raj. 938, 5. Smt. Rukmani Devi vs. Badri Narayan reported in 2001(3) WLC (Raj.) 689. 6. Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi reported in 2002 WLC (SC) Civil 69 = RLW 2002(1) SC 122. 7. Sanat Kumar Agarwal vs. Smt. Nandini Agarwal, reported in JT 1990 (1) SC 90. 8. Geeta Jagdish Mangtani vs. Jagdish Mangtani reported in 2005(2) WLC (SC) Civil 651 = RLW 2005(4) SC 2359. 9. Suman Kapur vs. Sudhir Kapur, reported in AIR 2009 SC 589 = 2009(3) RLW 1954 (SC). 10. Smt. Sneh Prabha vs. Ravinder Kumar reported in AIR 1995 SC 2170 . 11. Durga Prasanta Tripathy vs. Arundhati Tripathy reported in 2005(2) WLC (SC) Civil 461. 10. Per contra, Mr. Sunil Mehta, learned counsel for the respondent-wife vehemently opposed the present appeal and while submitting that irretrievable breakdown of marriage is not only factually incorrect because the respondent-wife was ever ready and is still ready and willing to go back to her matrimonial home, whereas the appellant-husband has refused to take her back in the matrimonial home and at the same time mere lapse of period of more than twenty years per-se cannot amount to the irretrievable breakdown of the marriage, which is not a statutory ground available for grant of divorce decree under Section 13 of the Act. Further referring to the cross-examination of the respondent-wife herself and pleadings and statements of various witnesses, learned counsel for the respondent-wife submitted that physical as well as mental cruelty was committed by the appellant-husband and his parents upon the respondent-wife. Further referring to the cross-examination of the respondent-wife herself and pleadings and statements of various witnesses, learned counsel for the respondent-wife submitted that physical as well as mental cruelty was committed by the appellant-husband and his parents upon the respondent-wife. She was not given sufficient food nor was allowed to take bath for months together and was not allowed to cohabit and live with her husband normally and under these circumstances, it was reasonable for her to leave matrimonial home and start residing with her father. The allegations regarding compelling her to leave his job as a teacher doing business with her brother at Bombay were absolutely false as in their community the secured Government job even of a teacher is highly respect-able and there was no reason for her to insist her husband to leave the job. 11. Learned counsel for the respondent-wife, therefore, supported the impugned judgment and submitted that divorce decree cannot be granted in the circumstances of the case. He relied upon following judgments in support of his submissions: 1. Neelam Kumar vs. Dayarani reported in (2010) 13 SCC 298 = 2010(3) RLW 2773 (SC) 2. Vinod vs. Sangeeta reported in 2010 (1) WLN 276 (Raj.) 3. Anil Kumar Jain vs. Maya Jain reported in (2009) 10 SCC 415 = 2010(1) RLW 965 (SC). 4. Vishnu Dutt Sharma vs. Manju Sharma reported in (2009) 6 SCC 379 = 2009(4) RLW 3309 (SC) 12. Having heard learned counsels for the parties, this Court is of the opinion that the present appeal of the appellant-husband is without any merit and the same deserves to be dismissed. The reasons are as follows. 13. Firstly, the irretrievable breakdown of the marriage in the absence of any statutory recognition of the same as a ground of divorce under Section 13 of the Act cannot be a ground for grant divorce decree at this stage even though the parties have been admittedly living separately for last more than twenty years. The fact that the respondent-wife has expressed time and again her desire to go back to the matrimonial home and not to suffer the title of a divorced woman, is enough not to infer the irretrievable breakdown of marriage. The fact that the respondent-wife has expressed time and again her desire to go back to the matrimonial home and not to suffer the title of a divorced woman, is enough not to infer the irretrievable breakdown of marriage. Moreover, the divorce decree granted on the said ground of irretrievable breakdown by the Hon'ble Supreme Court in some of cases was in exercise of jurisdiction under Article 142 of the Constitution of India and in the case of Anil Kumar Jain (supra), the Hon'ble Apex Court clearly held that this ground is not available to grant of divorce decree by other lower courts including the High Court. The relevant paras 29 and 30 of the said judgment are reproduced hereunder for ready reference: "29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955 for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable breakdown of marriage is not available even to the High Court which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955. 30. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitu-tion, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other courts can exercise such powers. The other courts are not competent to pass a decree for mutual divorce if one of the consen-ting parties withdraws his/her consent before the decree is passed. The other courts are not competent to pass a decree for mutual divorce if one of the consen-ting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by parties at the time of filing of the joint petitioner for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution can pass orders to do complete justice to the parties." 14. In the case of Vishnu Dutt vs. Manju Sharma (supra), the Hon'ble Apex Court in para 10 to 13 has held as under:- "10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. 11. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. 12. If we grant divorce on the ground of irretrievable breakdown, them we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for Parliament to enact or amend the law and not for the courts. Hence, we do not find force in the submission of the learned counsel for the appellant. 13. Had both the parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13-B of the Act, but in this case the respondent is not willing to agree to a divorce." 15. Hence, we do not find force in the submission of the learned counsel for the appellant. 13. Had both the parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13-B of the Act, but in this case the respondent is not willing to agree to a divorce." 15. In a recent decision in the case of Neelam Kumar vs. Dayarani (supra), this legal position was reiterated by another bench of Apex Court in the following manner:- "14. We are not impressed by this submissions at all. There is nothing to indicate that the respondent has contributed in any way to the alleged breakdown of the marriage. If a party to a marriage, by his own conduct brings the relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of the marriage. That would simply mean giving someone the benefits of his/her own misdeeds. 15. Moreover, in a later decision of this Court in Vishnu Dutt Sharma vs. Manju Sharma, (2009) 6 SCC 379 , it has been held that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under Section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court." 16. This Court in the case of Vinod vs. Sangeeta (supra), also dismissed the husband's appeal in almost similar circumstances, where the wife filed a criminal case under Section 498-A and 406 of IPC by observing that allegations of desertion and cruelty in the present case are of very general nature. The relevant paras 7 and 8 of the aforesaid judgment are reproduced herein below for ready reference. "7. The allegations of the cruelty and desertion in the present case are very general nature. As stated in the memo of appeal and the impugned judgment, the allegations are only of the vague nature that the respondent used to quarrel with the family members and used filthy language and did not respect the family members of the appellant-husband. No specific instance of such behaviour with the date and relevant particulars have been stated by the appellant either in the application under Section 13 of the Act or in the memo of appeal or it has come in evidence. 8. No specific instance of such behaviour with the date and relevant particulars have been stated by the appellant either in the application under Section 13 of the Act or in the memo of appeal or it has come in evidence. 8. Learned counsel for the appellant relied heavily upon the acquittal by the learned Sessions Judge in a case under Section 498A which in the opinion of this Court does not ensure to the benefit of appellant-husband. It is true that the desertion by the wife and leaving of matrimonial home without consent and not returning thereafter could amount to mental cruelty as held by this Court in case of Rakash Sharmja vs. Shurbhi Sharma but the facts of the present case are quite different from the facts of the said case. It has not been established by the appellant-husband in the present case that the respondent-wife had permanently left the matrimonial home without the consent of the appellant and never returned. On the contrary, it appears that on complaint filed under Section 498A and 406 IPC, the learned trial court had even convicted the appellant and other family members under Sections 498A and 406 and the appellate court only acquitted them giving them the benefit of doubt. In the circumstances which led to such filing of complaint and even conviction at the hands of learned trial court may give sufficient reason to the respondent wife to even leave the matrimonial home to save her life and acquire peace from such harassment. Such leaving of matrimonial home cannot amount to desertion for furnishing that ground of desertion under Section 13 (1)(i)(a) of the Hindu Marriage Act, 1955." 17. The judgments relied upon by the learned counsel for the appellant-husband, Mr. I.R. Choudhary, are now discussed below. 18. In the case of Durga Prasanna Tripathy vs. Arundhati Tripathy (supra), the Hon'ble Supreme Court granted divorce decree on the ground of irretrievable breakdown of marriage as the parties were living away for last 14 years and directing further payment of permanent alimony of Rs. 1 lacs besides Rs. 50,000/- granted by the Family Court, the Hon'ble Supreme Court in exercise of jurisdiction under Article 142 of the Constitution of India granted divorce decree. 1 lacs besides Rs. 50,000/- granted by the Family Court, the Hon'ble Supreme Court in exercise of jurisdiction under Article 142 of the Constitution of India granted divorce decree. This judgment is of little avail in view of later decisions of the Hon'ble Supreme Court discussed above as it turns on its own facts and was a judgment rendered in exercise of jurisdiction under Article 142 of the Constitution of India, which jurisdiction this Court does not have. 19. Similarly, in the case of Smt. Sneh Prabha vs. Ravinder Kumar (supra), the Hon'ble Supreme Court granted divorce decree finding that despite order of restitution of conjugal rights, confirmed in appeal and reconciliation efforts by the Supreme Court having failed, the Court felt that marriage of the parties, there was irretrievable breakdown and there was no chance that husband and wife would live together and, therefore, to do complete justice to the case, divorce decree was granted. This case also turns on its own facts and is not applicable to the present case. 20. In the case of Suman Kapur vs. Sudhir Kapur (supra), in the peculiar circumstances, where re-marriage of the husband before the expiry of period for filing of SLP had taken place, the Hon'ble Supreme Court directed the husband to pay the permanent alimony of Rs. 5 lacs to the wife and vide paras 35 to 45, it would appear that wife made wild allegations against the parents of the husband, which in the opinion of this Court amounted to mental cruelty. This case is also distinguishable with the facts of the present case. 21. Similarly, the decision relied upon by the learned counsel for the appellant-husband in Sanat Kumar Agarwal vs. Smt. Nandini Agarwal (supra) and Geeta Jagdish Mangtani vs. Jagdish Mangtani (supra) also based on the facts, which are quite different from the facts of the present case and are, therefore, of little avail to the appellant-husband in the present case. 22. 21. Similarly, the decision relied upon by the learned counsel for the appellant-husband in Sanat Kumar Agarwal vs. Smt. Nandini Agarwal (supra) and Geeta Jagdish Mangtani vs. Jagdish Mangtani (supra) also based on the facts, which are quite different from the facts of the present case and are, therefore, of little avail to the appellant-husband in the present case. 22. The judgment of this Court relied upon by the learned counsel for the appellant in the case of Smt. Rukmani Devi vs. Badri Narayan (supra), in which the Court found that wife had lodged criminal complaint against the husband his relatives and wife refused to cook food for husband and that husband was insulted by wife in presence of husband's relatives, were facts established on evidence and, therefore, the divorce decree granted by the Court below was liable to be upheld. This judgment in the opinion of this Court is also distinguishable from the facts of the present case. 23. Similarly, in the case of Smt. Shimala Devi vs. Kuldeep Sharma (supra), a coordinate bench of this Court held that mere mal-adjustment between parties would not tantamount to desertion and though the questions of desertion and cruelty suffer from lack of strict proof, yet there was no scope for interference, since neither party showed any willingness to live together. But, in the present case, since the respondent-wife has expressed her willingness to go back to matrimonial home, therefore, this judgment is not applicable to the facts of the present case. 24. Similarly, in the case of Rakesh Sharma vs. Surbhi Sharma (supra), it was held that leaving of matrimonial home without husband's consent and not returning thereafter could not amount to cruelty is a case where leaving of matrimonial home was without reasonable cause. However, in the present case, it is not so, and in view of mental and physical harassment caused to the respondent-wife and fact that she was constrained to file complaint under Section 498A and 406 of IPC and also under Section 125 of Cr.P.C., in which though the appellant-husband was acquitted but upon conviction, the parents were only given benefit of probation upon no serious opposition from the side of the respondent-wife, shows that leaving of matrimonial home by the respondent-wife (Smt. Shanti) in the present case was not without any reasonable cause. In Naveen Kohli vs. Neelu Kohli (supra), which is again a case of irretrievable breakdown, wherein the Hon'ble Supreme Court has only recommended the Parliament to consider it as a ground for being added in Section 13 of Hindu Marriage Act but so long as the said ground is not incorporated as a ground of divorce in Section 13 of the Act, this Court is unable to grant any divorce decree merely on the ground of long lapse of period taking it as a complete and irretrievable breakdown of the marriage. 25. Therefore, unless the stated grounds of divorce under Section 13 of the Act, could be established on the basis of evidence on record, the divorce decree cannot be granted. The learned court below has discussed in detail all the evidence, facts and circumstances of the case in a 19 page judgment and has finally found that the appellant-husband was not entitled to decree of divorce having failed to establish the ground of cruelty as well as desertion. This Court is of the opinion that said findings and judgment of the learned court below does not require any interference by this Court in the present appeal of the appellant-husband. The Explanation of Section 13(1) of the Act clearly stipulates that expression `desertion' mean desertion of petitioner by other party to marriage without reasonable cause and without the consent can amount to desertion. Therefore, merely leaving the matrimonial home and living separately with the father, it cannot be said that the respondent-wife has deserted the appellant-husband nor mere filing of complaint under Sections 498A and 406 of IPC; and Section 125 Cr.P.C. for maintenance, which was her legal right to avail such remedies in the circumstances at the relevant point of time, it cannot be said that they were false or frivolous cases filed by the respondent, which caused mental cruelty to the appellant-husband so as to entitle him to seek divorce and the learned trial court has rightly rejected these grounds for seeking divorce. 26. Consequently, this appeal of the husband is found to be devoid of any merit and the same is hereby dismissed. The respondent-wife shall be entitled to go to her matrimonial home and reside with the appellant-husband and besides taking possession of her "Stridhan", she would also be entitled to the share in the property of her husband. 26. Consequently, this appeal of the husband is found to be devoid of any merit and the same is hereby dismissed. The respondent-wife shall be entitled to go to her matrimonial home and reside with the appellant-husband and besides taking possession of her "Stridhan", she would also be entitled to the share in the property of her husband. Her not filing of any application under Section 9 of the Hindu Marriage Act would not deprive her of her right to reside with her husband. Subject to further appeal by the appellant-husband and any orders passed by the Apex Court, the appellant-husband would abide by these directions. No order as to costs.