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2014 DIGILAW 731 (PAT)

Priti Kumari v. Deepak Kumar

2014-07-02

JITENDRA MOHAN SHARMA, NAVIN SINHA

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ORDER : Per: HONOURABLE MR. JUSTICE NAVIN SINHA The present appeal arises from judgement and decree dated 3.5.2010 passed by the Principal Judge, Family Court, Gopalganj, dated 3.5.2010 in M. M. Case No. 95 of 2007. The application for divorce filed by the Respondent under Section 13 of the Hindu Marriage Act (hereinafter called “the Act”) has been allowed. 2. The learned Family Judge held that the appellant was guilty of desertion for more than two years. She was of quarrelsome nature and did not perform the duties of a housewife declining to look after the respondent’s mother suffering from cancer. The allegation for demands of dowry and consequent harassment had not been proved. The marriage had broken down irretrievably as the parties were living separately since long and were on litigating terms. 3. Learned Counsel for the appellant contended that the finding of desertion was erroneous. She was compelled to leave the matrimonial home because of the respondent’s conduct in demands for dowry and cruelty apparent from institution of Gopalganj PS Case No. 105 of 2004 under Section 498A IPC and Section 3 / 4 Dowry Prohibition Act coupled with Station Diary Entry No. 782 of 2004 dated 27.9.2004 for a different episode. She had never denied to look after the respondent’s mother and never refused to perform her obligations as a housewife. She was compelled to file Maintenance Case No. 75 of 2004 also as the respondent was not looking after her and the minor son born from the marriage. Her eagerness for revival of matrimonial harmony is apparent from the compromise agreed to by her in the criminal prosecution facilitating grant of anticipatory bail to the respondent and his family members. Without prejudice to the above it was lastly submitted that the amount of permanent alimony granted was grossly inadequate. 4. Learned Counsel for the respondent submitted that the findings of desertion and cruelty by refusing to cohabit and look after the sick mother merit no interference and the appeal is fit to be dismissed. It is lastly submitted that he has remarried in April 2013 having waited for receipt of notice regarding any appeal filed. The notice for the present appeal has been served on him only in January 2014 long after expiry of the period of limitation to file appeal. 5. We have considered the submissions on behalf of the parties. It is lastly submitted that he has remarried in April 2013 having waited for receipt of notice regarding any appeal filed. The notice for the present appeal has been served on him only in January 2014 long after expiry of the period of limitation to file appeal. 5. We have considered the submissions on behalf of the parties. Under Section 19(3) of the Family Courts Act the appeal was to be preferred within a period of thirty days from 3.5.2010 after excluding the period spent in obtaining the certified copy. The appeal therefore ought to have been presented on or before 15.6.2010. It was filed on 21.6.2010 on the reopening date of the Court after the annual vacation, with defects which were removed and re-filed on 29.6.2010. 6. The respondent examined himself and his mother. The appellant disputed that she was not looking after the mother-in-law. No cross-examination was done. Both parties are educated. Cancer is not a communicable disease. It is therefore difficult to uphold the respondent’s contention that the appellant refused to nurse his ailing mother fearful for her own health. 7. Time and again it has been held that being of a quarrelsome nature or failure to perform normal duties of a housewife constitute normal wear and tear of married life and cannot constitute cruelty as required in the law. To constitute cruelty, it requires a conduct more than incompatibility to make life impossible for one to live with the other. Judicial precedents are writ large on what constitutes cruelty and reference may appropriately be made to AIR 2011 SUPREME COURT 114 (Gurbux Singh v. Harminder Kaur) observing as follows:- “12. The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible conduct affecting physical and mental health of the other spouse may lead to mental cruelty.” 8. The conclusion that the statements of the respondent were more trustworthy than the appellant are held to be speculative and no conclusion can be based on the same. The pendency of the criminal case, cognizance having been taken under Section 498A and 3, 4 of the Dowry Prohibition Act at this stage with the trial still pending, lends primafacie credence to the allegations of cruelty leveled by the appellant against the respondent. The appellant’s entering into a compromise to facilitate grant of anticipatory bail to the respondent and his family members displays a course of conduct on her part to save the marriage. The Station Diary Entry by the appellant has also remained un-rebutted. In the circumstances if the appellant left the matrimonial home for reasons attributable to the conduct of the respondent himself it cannot be said that she did so without reasonable cause so as to amount to desertion by her under the Act. 9. The conclusion of the Principal Judge that divorce was mandated as the marriage had broken down irretrievably is not sustainable as it is not one of the grounds mentioned in Section 13 of the Act as a ground for divorce. In AIR 2011 SUPREME COURT 193 (Neelam Kumar v. Dayarani) it has been observed as follows:- “13. We are not impressed by this submission at all. There is nothing to indicate that the respondent has contributed in anyway 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. 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. Moreover, in a later decision of this Court in Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379 : ( AIR 2009 SC 2254 : 2009 AIR SCW 2984), 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. In the concluding paragraph of this judgment, the Court observed (Para 12) : "If we grant divorce on the ground of irretrievable breakdown, then 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 the Parliament to enact or amend the law and not for the Courts." 10. Having said so much, there is another aspect to be taken note of in the facts and circumstances of the case because of which we are persuaded not to interfere with the order under appeal. The appeal was filed in this Court on 21.6.2010. The appellant took no further steps and as late as 25.7.2013 filed an application to condone delay. The question whether the appeal was barred by limitation or not was not relevant at this stage. But the order dated 25.7.2013 was not complied with till 25.10.2013. Notice was issued on 21.11.2013. The respondent contends that the period of limitation having expired and he having received no notice during the same or within reasonable period thereafter bonafide believed that there was no impediment to his remarrying, which he did in April, 2013. Technically, the marriage has been solemnised after the institution of the appeal within time though at the penultimate stage. The respondent contends that the period of limitation having expired and he having received no notice during the same or within reasonable period thereafter bonafide believed that there was no impediment to his remarrying, which he did in April, 2013. Technically, the marriage has been solemnised after the institution of the appeal within time though at the penultimate stage. But given the sequence of events thereafter, the delay in the appeal being taken up for consideration, absence of any knowledge of the appeal by the respondent till after he solemnised the marriage believing that no appeal had been preferred, and which defence cannot be lightly brushed aside in a matrimonial matter we must take note of that development. 11. Matrimonial matters cannot be tested only on the arid field of the law applied heartlessly irrespective of the consequences, since it affects more than one human life and inter personal relations. We are therefore satisfied that in the peculiar facts of the case because of the re-marriage of the respondent the order under appeal calls for no interference. 12. We shall now take up the issue for permanent alimony as granted. The appellant is stated to be unemployed with no source of income unable to maintain herself and the minor child born from the marriage. The respondent is an employee in the Revenue Department getting approximately Rs. 16000/- per month. In the circumstances, we consider it proper to enhance the permanent alimony to Rs. 2,00,000/- (Two lakhs) after deducting the amount already paid as maintenance under orders of the Court. 13. The appeal stands disposed with the aforesaid modification of the order dated 3.5.2010. Jitendra Mohan Sharma, J.- I agree.