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2016 DIGILAW 53 (CAL)

Kishen Chand v. Bhagwanti Devi

2016-01-15

DEBI PROSAD DEY, HARISH TANDON

body2016
JUDGMENT : Debi Prosad Dey, J. This first appeal is directed against the judgment and decree passed by the Learned District Judge, Port Blair in Matrimonial Suit No. 60/2008 wherein and whereunder learned District Judge has dismissed the Matrimonial Suit filed at the instant of the appellant and thereby refused to grant the decree of divorce on the ground cruelty. 2. Being aggrieved by and dissatisfied with the judgment and decree passed by the learned District Judge, Port Blair, plaintiff/appellant (hereinafter referred to as ‘appellant’ only) has filed this first appeal on amongst other grounds that learned Trial Judge could not properly appreciate the factum of cruelty meted out to the appellant by the defendant/respondent (hereinafter referred to as respondent only) and that learned Trial Court failed to appreciate the admission of respondent regarding separate residence of the appellant and respondent for a long time and that learned Trial Court has completely misdirected itself in appreciating the case of the appellant and thereby came to an erroneous decision, which is required to be set aside by this Court. 3. It would not be out of place to mention in brief about the fact of the case. The appellant tied his nuptial knot with the respondent on 10th May, 1967 according to Hindu rites and customs at Dollygunj and thereafter they used to reside in the house of the appellant at Hope Town. The respondent gave birth to three children. According to appellant, the respondent executed a Power of Attorney in favour of the appellant on 29th June 1979 and the said Power of Attorney was duly registered at the office of Sub Register, Port Blair. The respondent duly authorised the appellant by such Power of Attorney to act on her behalf in the matters of transfer, sale and mortgage of the property of the respondent. On the strength of such Power of Attorney, the appellant executed a sale deed in the year 1982 in favour of one M.A Balliappa on behalf of the respondent and thereby sold out the property of the respondent at a consideration of Rs. 5000/-. The appellant used to look after the entire family and the respondent being House Wife has had no practical knowledge about management of property and that’s why the appellant was authorised to look into the properties of the respondent. 5000/-. The appellant used to look after the entire family and the respondent being House Wife has had no practical knowledge about management of property and that’s why the appellant was authorised to look into the properties of the respondent. Balliappa, however, decided to leave these Islands permanently and that’s why he requested the appellant to purchase the selfsame landed property, which actually stood in the name of the respondent. Pursuant to such request of Balliappa, the appellant purchased the said property in the year 1984 against appropriate consideration and on the strength of a registered sale deed. The appellant thereafter developed the said land out of his own expenses. In fact the appellant was subjected to cruelty particularly on and from 2004. The respondent falsely filed a case under section 125 Cr.P.C for maintenance against the appellant but the said case was ultimately settled in the Lok Adalat. The respondent had also filed another case under the Provisions of Protection of Women from Domestic Violence Act before the learned Chief Judicial Magistrate, Port Blair. The respondent has also filed a Title Suit being No. 73/2007 in August, 2007 before the Learned Civil Judge Senior Division, Port Blair with some false and frivolous allegations against the appellant. On 27.08.2007 the respondent removed her Mangal Sutra and also abused the appellant with filthy languages without any reasonable excuse and thereby subjected the appellant to inexplicable and inhuman torture. Finding no other alternative, appellant out of severe mental pressure and agony left his house and started residing elsewhere in rented accommodation. On the ground of mental cruelty, the appellant has thus filed the suit under reference in order to severe his marital tie with the respondent. 4. The respondent has contested the suit by filling written statement wherein she has denied all the material allegations contained in the plaints. The specific case of the respondent is that the appellant has falsely filed this case since he has been residing with the respondent in the selfsame house and no such occurrence of cruelty had ever taken place. 5. Learned Trial Court after considering pleading on record framed as many as four issues and thereafter disposed of the issues separately. Learned Trial Judge has specifically held that the appellant has failed to prove that he was subjected to mental cruelty by the respondent and accordingly dismissed the matrimonial suit but without costs. 6. 5. Learned Trial Court after considering pleading on record framed as many as four issues and thereafter disposed of the issues separately. Learned Trial Judge has specifically held that the appellant has failed to prove that he was subjected to mental cruelty by the respondent and accordingly dismissed the matrimonial suit but without costs. 6. It is necessary to discuss the evidences on record in order to appreciate the case of both the parties. Appellant examined himself as PW1 and he has virtually reproduced the plaint by filling affidavit under order 18 Rule 4 of the amended Code of Civil Procedure. 7. PW 1 has proved some documents viz exhibit 1 (certified copies of the proceedings of the Lot Adalat), exhibit 2 (copy of the judgment of this Hob’ble Court passed in Civil Revision No.002/2008) and the certified copy of the on Power of Attorney. On scrutiny of Lower Court’s Record we find that the said Power of Attorney has not been marked as exhibit. Though the general Power of Attorney has been incorporated in the Paper Book as exhibit 3 yet we do not find any mark of exhibit in the said Power of Attorney. In his cross examination PW 1 has admitted that the respondent had filed suit for cancellation of such Power of Attorney in the court of Civil Judge Senior Division at Port Blair. PW1 has further admitted that at the time of filling this Matrimonial Suit PW 1 used to reside with the respondent in the selfsame house, but in different rooms. It is apparent from the cross examination of PW1 that proceedings under section 125 of the Criminal Procedure Code was settled between the parties in the Lok Adalat and pursuant to the direction of such Lok Adalat PW1 took back the respondent to his house. It would be pertinent to mention here that the son of the appellant DW2 Davin Chand stated in his evidence that in the year 2005 his father drove out the respondent from his house and the respondent took shelter at her brother’s house at Dollygunj since the appellant/father of DW2 was toying with the idea of selling out the landed property at that relevant point of time. Finding no other alternative, respondent had filed an application for maintenance under section 125 Cr.P.C and ultimately the said case was compromised and the appellant had agreed to take back his mother. The admission on that score by PW 1 clearly shows that the respondent had no other alternative but to take resort to the court of law wholly for her subsistence and as such the said act of respondent can never be termed to be cruelty against appellant. PW 1 has further admitted that the property was actually allotted in the name of the respondent and thereafter they used to reside on such landed property. The case under Domestic Violence Act has also been compromised between the parties. PW 1 further admitted that on the strength of such Power of Attorney he sold out the property which stood in the name of the respondent, but he could not account for as to how he had utilised the sale proceeds. It is a fact that the property of respondent was sold to Balliappa and thereafter the said property was purchased by PW1 in his own name. Admittedly, the case of the appellant, as it transpires from his evidence is that owing to vital difference in temperament and totally incompatibility it has become next to impossible to lead a normal conjugal life with the respondent since the life of the appellant is at stake. The respondent used to throw her footwear on the face of the appellant after filing of the above mentioned Title Suit in order to get back her property and that’s why the appellant has been compelled to live separately in rented accommodation. PW 2 has admitted that his father has been residing separately. This is all about the case of the appellant with regard to his case of cruelty. The respondent has categorically denied all such allegations in her evidence. DW 2, son of the appellant and the respondent, has supported the case of the respondent. It has been elicited in the cross examination of DW 2 that the appellant has filed the present Matrimonial Suit against respondent after being aware of filling of the Civil Suit by the respondent against the appellant. 8. Mr. Arul Prasanth, learned advocate appearing on behalf of the appellant contended that learned Trial Judge failed to appreciate that the appellant was meted out with cruelty by the respondent. Mr. 8. Mr. Arul Prasanth, learned advocate appearing on behalf of the appellant contended that learned Trial Judge failed to appreciate that the appellant was meted out with cruelty by the respondent. Mr. Arul Prasanth, learned advocate appearing on behalf of the appellant submitted that the respondent has filed successive cases with false and frivolous allegations and thereby the appellant has been subjected to mental cruelty. Secondly, the respondent had filed a Civil Suit against the appellant and the Hon’ble High Court while delivering judgment in CR No. 002 of 2008 has specifically observed that the respondent had no prima-facie case and as such Hon’ble Court was pleased to set aside the order of injunction passed by learned Civil Judge Senior Division. Learned advocate, Mr. Arul Prasanth appearing on behalf of the appellant further contended that Hon’ble apex court has accepted such activities of wife in selfsame cases as cruelty and accordingly granted divorce. In support of his contention learned advocate has referred the decision reported in 2014 (7) SCC 640 (Dr.(Mrs) Malathi Ravi, M.D appellant –vs-Dr. D.V. Ravi, M.D, respondent ) and 2007 UAD 449 (Smt. Mayadevi –vs-Jagdish Prasad). 9. Mr. Krishna Rao, learned advocate appearing on behalf of the respondent contended that the appellant has miserably failed to prove any sort of mental cruelty and that’s why learned Trial Judge was perfectly justified in dismissing the suit. 10. Mr. Rao, learned advocate further contented that there was justification on the part of the respondent to file application under section 125 Cr.P.C and the application under Domestic Violence Act since the respondent was actually subjected to cruelty and ultimately both the cases were settled in Lok Adalat and the appellant took back the respondent and allowed her to stay in his house. Learned advocate Mr. Rao has pointed out the cross examination of DW2 in support of his contention wherein it has been elicited in the cross examination of DW 2 about the reasons of filling such cases by the respondent. The pleadings of such cases have not been filed in court in order to show that indecent or disparaging remarks/statement had ever been made by the respondent while filling such cases against the appellant. The pleadings of such cases have not been filed in court in order to show that indecent or disparaging remarks/statement had ever been made by the respondent while filling such cases against the appellant. On the contrary, it is apparent from the cross examination of PW2 who is son of appellant that the appellant drove out the respondent from his house at the relevant point of time and the respondent took shelter in her brother’s house at Dollygunj. That goes to show that the respondent was compelled file such cases only in order to save herself. Admittedly, the respondent has filed a civil suit praying for cancellation of the Power of Attorney which has been executed by her in favour of the appellant and has further prayed for declaration that the transactions in respect of her property on the strength of such Power of Attorney are bad in law or are not binding on her. Learned advocate for the respondent has referred the decision of the apex court in support of his contention vide Civil Appeal No. 3483 on 2011 (Ramchander vs. Ananta). 11. Two well educated Doctors immediate after their marriage started fighting with each other and ultimately the wife left the house of her Husband in order to pursue higher studies without the consent and knowledge of her husband. Considering the facts and circumstances of such case Hon’ble Apex court gave a stamp of approval in severance of marital tie between the parties. Learned advocate for the appellant has drawn our attention with regard to the observation of the Hon’ble Supreme Court wherein Hon’ble Supreme Court has observed as follows in the decision reported in 2007 (4) SCC 511 (Sammer Gosh vs. Jaya Gosh). “Making unfounded indecent defamatory allegations against the spouse or his or her relative in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filling repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.” 12. The aforesaid decision is not applicable in the given facts and circumstances of this case. The aforesaid decision is not applicable in the given facts and circumstances of this case. Moreover, in the selfsame decision, Hon’ble Apex Court has been pleased to observe that 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 such 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. In the decision Civil Appeal No.877 of 2007 (Arising out of SLP (C) No.3686 of 2006) (Smt. Mayadevi vs. Jagdish Pradad) the Hon’ble Apex court has dealt with the expression cruelty in para 11 and 12 of the said decision. We are tempted to reproduce such paragraphs to appreciate the case of the appellant. “11.The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the preview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or in inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental, in physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. 12. The expression ‘cruelty’ 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 Cruelty is a course or 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 in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in 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. However, there may be a case where the conduct complained of itself is bad enough, and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquire into or considered. However, there may be a case where the conduct complained of itself is bad enough, and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquire into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 and A. Jayachandra v. Aneel Kaur 2005 (2) SCC 22 ). 13. It is therefore apparent from the Principle of law evolved from the aforesaid decisions that the entire married life is required to be reviewed to come to a definite conclusion as to whether cruelty has been meted out to his/her spouse. Cruelly may be mental or physical. There is absolutely no parameter to measure the cruelty in the case under reference. It is apparent that except some vague allegations, which have been emphatically denied by the respondent, appellant could not produce any evidence in respect of physical cruelty. On the contrary, we find that there was sufficient justification on the part of the respondent to file such applications under section 125 Cr.P.C and under Domestic Violence Act in order to save herself. No disparaging statement has been made by the respondent while filing such cases so as to besmirch the character or reputation of the appellant in the estimation of society. Mere filing of such cases, by any stretch of imagination can not be construed as an act of cruelty against the appellant. The facts and evidences on record do not demonstrate any circumstances whereby the appellant has/had reasonable apprehension to his life, limbs or health, bodily or mental so as to give rise to a reasonable apprehension of such danger. On the contrary, it transpires from exhibit 2 (order of Hon’ble High Court in CR No. 002 of 2008) that respondent never stated in her plaint that the signature appearing in the Power of Attorney was forged by the appellant. That goes to show that the respondent did not make any sort of disparaging remark against the appellant even at the time of filing such civil suit. On studied evolution of evidences on record we find that dispute cropped between the parties as and when the appellant tried to sell the property which stood in the name of the respondent. That goes to show that the respondent did not make any sort of disparaging remark against the appellant even at the time of filing such civil suit. On studied evolution of evidences on record we find that dispute cropped between the parties as and when the appellant tried to sell the property which stood in the name of the respondent. The marriage took place in the year 1967 and the appellant is now aged about 75 years. The respondent is also aged about 72 years. While reviewing their married life we find that the nuptial knot was tied in the year 1967 and both the parties stayed happily for at least 30 years after their marriage and three children were born out of their wed lock. In case of marriage the wife simply divested her entire life to her husband. The respondent had even executed the Power of Attorney in favour of her Husband/ appellant and thereby divested of her entire life and property in favour of the appellant. The appellant taking advantage of such Power of Attorney not only had transferred the property of the wife but also had reacquired the selfsame property in his own name and obviously without the knowledge of the respondent. Thereafter, as per evidence of PW 2 the appellant tried to sell the said property and even drove out the respondent from his house. That was the reason for filling of such cases by the respondent. And the respondent being aware of such action of the appellant accordingly was compelled to file the Civil Suit. 14. Therefore, we do not find any case of physical or mental cruelty in the given facts and circumstances of this case. The Fabric of the society depends upon the families of such societies. The parties of this appeal continued to live happily for at least 30 years and thereafter a dispute cropped up with regard to the property at the fag end of their lives. The justification of such dispute appears to be genuine. The appellant has not been driven out from his present residence. Cause title of the plaint reveals that the appellant has been residing in the selfsame house along with the respondent. The appellant never took any step for amendment of the cause title. The justification of such dispute appears to be genuine. The appellant has not been driven out from his present residence. Cause title of the plaint reveals that the appellant has been residing in the selfsame house along with the respondent. The appellant never took any step for amendment of the cause title. Secondly, it appears from evidence on record that after being aware of filing of the Civil Suit, the appellant has filed the suit for divorce absolutely in order to put pressure upon the respondent. The appellant has started residing in separate accommodation out of his own and there is absolutely no evidence that the appellant was subjected to any kind of mental or physical torture by the respondent or that appellant had reasonable apprehension with regard to his life during his stay with the respondent. The appellant volunterally left the house. The appellant also did not produce any rent receipt with regard to his separate accommodation. No evidence is forth coming that the respondent failed to take care of the appellant. There is also no evidence that the safety of the appellant has been endangered due to the activities of the respondent. Or that social position and image of the appellant have been destroyed by the respondent. On the contrary, it transpires from the evidence of the respondents that the appellant has filed this Matrimonial Suit while residing with the respondent and he used to reside with the respondent. On the strength of the cross examination of DW 2 it would not be just and fair to hold that the appellant was subjected to any kind of mental or physical cruelty by the respondent. Due to old age both the parties have lost their vitality in order to commit any sort of torture on either of the parties. In that view of this case, we are of considered view that the appellant is not entitled to get a decree of divorce on the ground of cruelty and Learned District Judge, Port Blair was perfectly justified in dismissing the suit. 15. We do not find any reason to interfere with the judgment and decree passed by the learned District Judge, Port Blair. 16. In the result the appeal fails. 17. The judgment and decree passed by the learned District Judge in Matrimonial Suit No. 60 of 2008 dated 17th June, 2015 is thus affirmed. 18. 15. We do not find any reason to interfere with the judgment and decree passed by the learned District Judge, Port Blair. 16. In the result the appeal fails. 17. The judgment and decree passed by the learned District Judge in Matrimonial Suit No. 60 of 2008 dated 17th June, 2015 is thus affirmed. 18. Let the lower court’s record along with the copy of this judgment be forwarded to the court of learned District Judge, Andaman and Nicobar Islands for his information. 19. No order as to costs. Harish Tandon, J. : I agree.