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2013 DIGILAW 417 (GAU)

Kishore Saha v. Jhuma Saha

2013-06-17

I.A.ANSARI, INDIRA SHAH

body2013
JUDGMENT Dr. Indira Shah, J. 1. The judgment and decree dated 21.11.2009 passed by the learned Addl. District Judge, FTC, Dibrugarh in Title Suit (D) No. 54 of 2006 dismissing the divorce suit filed by the appellant has been challenged in this appeal. The marriage between the parties was solemnized, on 26.05.2003, in accordance with the Hindu Rites and Custom at Dibrugarh. After the marriage, the respondent resided at her matrimonial home along with the appellant-husband. It was alleged by the appellant-husband in his petition for divorce that the attitude of the respondent-wife towards her husband and family was never cordial and she used to refuse to do household works. The respondent while she was carrying pregnancy was taken by the mother of the appellant for medical check up, to Dr. P.K. Sarma of Doomdooma, but the respondent refused to get down from the bus and she told that she wanted to go Tinsukia. The mother of the petitioner accompanied her to Tinsukia, but when the bus reached Makum, the respondent insisted the appellant's mother to go back to Dibrugarh. Finding no other alternative, his mother came back home alone. Since then, the respondent deserted the appellant, although, the appellant and his family members went to bring her back, the family members of the respondents gave assurance them they would send back her to matrimonial home after 'Kalipuja' but the respondent did not join the husband society even after 'Kalipuja'. 2. A legal notice against the appellant's family was issued, to which, the petitioner gave reply. Thereafter, the respondent filed a case under Section 125 Cr.P.C. claiming maintenance from the petitioner. During the pendency of proceeding under Section 125 Cr.P.C., she gave birth to a female child. The petitioner also filed petition for restitution of conjugal life, which was registered as title suit under section 9 of the Hindu Marriage Act. It was alleged by the appellant that the respondent never allowed him and his family members to meet the female child born to her and she deserted him since 17.10.2003 without any valid reason. 3. The respondent contested the suit by filing written statement wherein, she alleged that since the date of her marriage, the appellant and his family members demanded valuable goods as dowry and when she failed to meet their demand, she was mentally and physically tortured and ultimately she was driven out to her matrimonial home. 3. The respondent contested the suit by filing written statement wherein, she alleged that since the date of her marriage, the appellant and his family members demanded valuable goods as dowry and when she failed to meet their demand, she was mentally and physically tortured and ultimately she was driven out to her matrimonial home. 4. The learned trial Court, on the basis of the pleadings, framed the following issues:- (1) Whether the suit is maintainable in its present form both in law as well as in facts? (2) Whether the petitioner was treated with cruelty by the respondent? (3) Whether the petitioner is deserted for a continuous period of two years? (4) Whether the petitioner is entitled for a decree as prayed for? (5) To what reliefs the parties are entitled to? 5. The appellant-petitioner examined himself and adduced evidence of 4 witnesses. The respondent also adduced her own evidence and evidence of 1 witness. On conclusion of proceeding, the learned trial Court held that the petitioner/appellant is not entitled to get a decree for divorce as prayed for. 6. The appellant/petitioner prayed for divorce on two counts:- cruelty and desertion. In his evidence, he deposed that the attitude of the respondent towards his family member is not cordial. The respondent refused to do the household work and was adamant in nature, when she left the matrimonial house she filed a proceeding claiming maintenance under Section 125 Cr.P.C. The appellant has to remain in jail for 28 days for non payment of maintenance allowance. She left the society of her husband without just and reasonable cause, he alleged. The respondent, in her evidence, alleged that the petitioner's husband and his family members used to demand dowry and when she failed to fulfil their demand, she was subjected to torture both physically and mentally. 7. Although, the expression cruelty has not been defined in the Act, Cruelty, as per explanation under 498A IPC, it can be inferred. In the case of Gurbux Singh Vs. Harminder Kaur, (2010) 14 SCC 301 , few instances of human behaviour dealing with the cases of 'mental cruelty' have been illustrated as under- 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. Harminder Kaur, (2010) 14 SCC 301 , few instances of human behaviour dealing with the cases of 'mental cruelty' have been illustrated as under- 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset, may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason of without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) 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 sever 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 situation, it may lead to mental cruelty. 8. Cruelty, which is ground for dissolution of marriage may be defined wilful and unjustifiable conduct of such character as to cause danger of life, limb or health, bodily or mentally or as to give rise a reasonable apprehension of such a danger. To constitute cruelty, the conduct, complaint should be grave and weighty so as to come to the conclusion that the petitioner's spouse cannot be reasonably accepted to live with the other spouse. It must be something more serious than ordinarily wear and tear of marriage life. To constitute cruelty, the conduct, complaint should be grave and weighty so as to come to the conclusion that the petitioner's spouse cannot be reasonably accepted to live with the other spouse. It must be something more serious than ordinarily wear and tear of marriage life. It must be of the type to satisfy the conscience of the court that the relationship between the parties has deteriorated to such an extent due to the conduct of the other spouse that it would not be possible for them to live together without mental agony, torture or distress. However, insignificant or trifling such conduct may cause pain in the mind of another, but before such conduct can be called cruelty, it must be touched a certain severity. It is for the Court to see whether the conduct was such an extent that no reasonable person would tolerate it. Every matrimonial conduct, which may cause annoyance to other, may not amount to cruelty. 9. In this case the allegation of the husband is that the respondent refused to do household work and her attitude towards the appellant and his family members was never cordial. This conduct of the respondent towards the husband cannot be termed as cruelty. Therefore, the trial court rightly held that the petitioner/appellant failed to prove that the petitioner's husband was subjected to cruelty by the respondent. 10. The petitioner-appellant also alleged that the respondent since 17.10.2003 has deserted him. It is the allegation of the husband that while the respondent was carrying pregnancy, on 17.10.2003, his mother took her to doctor for medical check up but the respondent went to her parental house and thereafter, she never returned to her matrimonial home. The respondent, on the other hand, has alleged that she was subjected to mental and physical torture by the petitioner and his family members as they were demanding dowry. According to her, on 16.10.2003, the petitioner and his family members assaulted her and, thereafter, expelled her from her matrimonial home. The respondent, then, issued a notice dated 24.10.2003, through her lawyer to the petitioner-appellant and his family members asking them to take her back to her matrimonial home and to keep her with honour and respect. 11. Desertion as defined by the explanation to Sub-Section (i) of Section 13, requires desertion of the petitioner by the other party to the marriage without reasonable cause etc. 11. Desertion as defined by the explanation to Sub-Section (i) of Section 13, requires desertion of the petitioner by the other party to the marriage without reasonable cause etc. The reasonable cause as contemplated by explanation under Section 13(1) should be a cause, which should sufficiently grave and weighty so as to justify the living of the wife away from the husband. Desertion as per explanation to Section 13 of the Act implies intentional and permanent abandonment of one spouse by other without his or her consent and without reasonable cause. Therefore, to constitute desertion following elements are necessary, (i) the factum of separation; (2) the intention to bring cohabitation permanently to an end (animus deserendi). Two elements are essential to prove so far as the deserted spouse is concerned); (3) the absence of consent, and (4) absence of conduct giving reasonable cause to the spouse to quit the matrimonial home. 12. The question of desertion can not be decided by merely ascertaining as to which party left the matrimonial home and the person who actually withdrew from cohabitation. It may be that the party withdrawing from cohabitation may have been forced by the conduct of the other to leave the home. To constitute desertion, there must be intentional and permanent abandonment of one spouse by the other without the consent of the other and without just or reasonable cause. In the present case, as per allegation of the husband, the wife refused to go to the doctor and went to her parental house was told to him by his mother. Mother was not examined. Therefore, his evidence is hearsay. On the contrary, the respondent alleged that she was deserted and expelled from the matrimonial home. She through her lawyer issued notice to the petitioner to take her take to the matrimonial home. She exhibited the notice and her evidence was corroborated by the evidence of her mother. Thus, the husband failed to prove that the wife is leaving away from the matrimonial home without unjust and reasonable cause. He failed to prove that the wife is leaving separately with an intention to bring cohabitation permanently to an end. 13. It is well settled law that mere physical separation would not amount to desertion, the 'animus 'deserendi' or the intention to bring cohabitation permanently to an end must coexist. He failed to prove that the wife is leaving separately with an intention to bring cohabitation permanently to an end. 13. It is well settled law that mere physical separation would not amount to desertion, the 'animus 'deserendi' or the intention to bring cohabitation permanently to an end must coexist. It is necessary for the husband to establish prima facie that the separation of the wife did constitute desertion by establishing that he did not neglect his wife (Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, AIR 2003 SC 2462 , Heruwanti Tripathi Vs. Harish Narayan, AIR 2012 Delhi 1 followed). 14. In view of the above, the learned trial Court rightly held that the appellant-petitioner was not entitled to get decree for divorce on the ground of desertion as he failed to prove that his wife was guilty of desertion. Therefore, the judgment and decree passed by the learned trial Court is upheld. The appeal is dismissed. Return the case records along with a copy of the judgment and order to the learned court below forthwith.