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Allahabad High Court · body

2017 DIGILAW 2340 (ALL)

LEONARD DASS v. PREMA CATHERINE DASS

2017-10-11

ARUN TANDON, RAJIV JOSHI

body2017
JUDGMENT By the Court.—Heard Sri Ravi Kant, senior Advocate assisted by Sri Tarun Agrawal on behalf of the appellant and Sri V.K. Upadhyay on behalf of the respondents. 2. This First Appeal under Section 19 of the Family Courts Act, 1984 has been filed against the judgment and decree of Addl. Principal Judge, Family Court, Allahabad dated 2.2.2016 passed in Matrimonial Case No. 790 of 2013. The relevant facts for deciding the present appeal emerging out of the paper book filed on behalf of the parties are as under : 3. Appellant Leonard Dass, (hereinafter referred as the plaintiff/husband) was married to Prema Catherine (hereinafter referred as wife) on 17.7.2011 in accordance with the ceremonies as provided under Christian law. 4. It is not in dispute that the plaintiff-husband is employed in Sam Higginbottom Institute of Agriculture,Technology and Sciences, Naini, Allahabad and that wife is engaged as teacher at Bethany Convent School, Naini, Allahabad. The plaintiff-husband filed suit No. 790 of 2013, Leonard Dass v. Prs. Prema Catherine Dass, with relief for a decree of divorce being granted in favour of the husband alongwith cost of the proceedings. It is the case of the plaintiff-husband that within two weeks of the marriage, the husband had left the wife at the gate of Bethany Convent School at 7 a.m. in the morning. He went to take her back home after school hours but she was missing. The husband lad to lodge a police report about her having gone missing on 1.9.2011. The wife ultimately returned on 16.9.2011 and begged pardon for her mistake. Similarly, it was stated that on 21.9.2011 she again left the matrimonial house without information and ultimately she was traced at Shelter Home, Allahabad run and managed by Sister Sheeba Jose. She initially refused to return to the matrimonial home but on persuasion she could be brought home. It was then stated that out of the wedlock, a child was borne on 17.4.2012 in the hospital. However, she refused to return to the matrimonial house. However, on 24.5.2012 she returned and started living with her husband. After less than three months, she without any reason again left the matrimonial house leaving behind the child and was found at the shelter home. It was also stated that after some time, mother of the husband returned from Nagpur and she alone is taking care of the minor child. After less than three months, she without any reason again left the matrimonial house leaving behind the child and was found at the shelter home. It was also stated that after some time, mother of the husband returned from Nagpur and she alone is taking care of the minor child. On 24.8.2012 the wife returned to the matrimonial house. On 1.9.2012 the wife alongwith the family went for the Church and left the minor child on the stairs of the Church. Despite repeated phone calls she did not respond. On 31.10.2012 Sister Sheeba Jose informed about presence of the wife at the Shelter Home. The wife also instituted a false case for a decree of divorce which was registered as Matrimonial Case No. 1198 of 2012, Cathrine Prema Dass v. Leonard Dass, on false allegations at Allahabad. This suit was dismissed for want of prosecution on 3.4.2013. The wife also initiated proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005, which contained false allegations and the same was again dismissed in absence of any evidence being led in support of the violence alleged. On these allegations, the husband prayed for a decree of divorce with the averments that because of acts as noticed above, it is not possible for the plaintiff to live with the respondent-wife, hence the petition for divorce. The suit so filed was contested by the wife and it was stated that it was the husband who had all along mal- treated the wife. He had abused her and also indulged in Mar-peet. It is because of such attitude of the husband that she had to leave the matrimonial house and reside at the shelter home. It was stated that after the child was borne in the hospital, the husband had come to the hospital and had created a scene in a drunken state. Even the expenses for delivery of the child had to be borne by the wife alone and no financial assistance was provided by the husband. The Family Court after considering the pleadings of the parties, framed three issues for determination in the said suit i.e. (i) Whether the wife has behaved in a cruel manner with her husband ?, (ii) Whether the wife has deserted the husband without any reasonable cause ? and (iii) to what relief the husband is entitled. 5. The Family Court after considering the pleadings of the parties, framed three issues for determination in the said suit i.e. (i) Whether the wife has behaved in a cruel manner with her husband ?, (ii) Whether the wife has deserted the husband without any reasonable cause ? and (iii) to what relief the husband is entitled. 5. So far as the issue of cruelty is concerned, the trial Court after taking note of the facts that wife had left the matrimonial home on a number of occasions without any information: had left the child at the stairs of the Church without informing the husband; had initiated proceedings for divorce which was dismissed for want of prosecution and had made allegations of violence under the provisions of Protection of Women from Domestic Violence Act which was again dismissed for want of evidence and the evidence of Prema Catherine Dass, has held that conduct of the wife and husband towards each other, had resulted in for mental cruelty. Meaning thereby that both husband and wife have behaved in a manner resulting in mental cruelty to each other. 6. So far as issue No. 2 is concerned, a finding has been returned that having regard to the provisions of Section 10(1) (ix) of the Divorce Act, 1869 which is para materia to Section 27 (1) (b) of the Special Marriages Act, a suit for divorce on the ground of desertion could be maintained only after period of two years immediately preceding the presentation of plaint for divorce. Since the present suit for divorce has been filed on date which is less than two years from the alleged date of marriage, the Family Court has come to the conclusion that the question of desertion for over a period of two years will not arise. Accordingly after noticing the judgments of various High Courts referred to in the order, the Family Curt found that the application under Section 10(1) (ix) of the Divorce Act, would not be maintainable. 7. Sri Ravi Kant on behalf of the appellant initially contended that the desertion has continued even thereafter and therefore the period of two years as on date stands expired and whatever has been the technical lapse, the same does not survive any further. He therefore insisted that divorce decree in view of Section 10 (1) (ix) of the Divorce Act, be granted. 13. He therefore insisted that divorce decree in view of Section 10 (1) (ix) of the Divorce Act, be granted. 13. In our opinion, the contention has only been raised to be rejected. The language of Section 10(1)(ix) of the Divorce Act, is simple and admits of no exception. For ready reference, the said Section is quoted below : “10. Grounds for dissolution of marriage.—?(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent? - (i)........... to....... (viii). (ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or.” 8. It would be seen that in the plaint for divorce being filed under the said provision, it has to be established that the desertion has been for more than two years on the date of presentation of application for divorce. It is an admitted position that marriage between the parties had not completed two years on the date plaint for divorce was filed and therefore the question of desertion being for a period of more than two years on the date the application was made, does not arise. We see no illegality or infirmity in the conclusion drawn by the trial Court on the aforesaid aspect. 9. On behalf of the plaintiff-husband, Sri Ravi Kant, senior Advocate further submitted that there has been admission of cruelty leading to mental torture by the trial Court while deciding issue No. 1 and therefore in view of Section 10 (1) (x) of the Divorce Act, decree of divorce should have been granted. 10. For appreciating the contention, it is necessary to have a look upon Section 10(1) (x) of the Divorce Act, relevant part of which reads thus: “(x). has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.” 11. has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.” 11. From a simple reading of the above provision, it will be seen that not only cruelty is to be established, it is further to be shown that because of such cruelty, a reasonable apprehension has arisen in the mind of the petitioner that it would be harmful or injurious to live with the respondent. We have carefully gone through the plaint filed by the husband. The only paragraph relevant, according to us, for considering as to whether there had been any pleading to disclose reasonable apprehension in the mind of the petitioner qua it being dangerous, harmful or injurious for the petitioner to live with the respondent, is paragraph 35, which is reproduced below : “35. That on account of misdeeds, as aforesaid, it is not possible for the petitioner to live with the respondent, hence this petition.” 12. In our opinion, the averments so made do not in any way establish any reasonable apprehension in the mind of the plaintiff to the effect that it has become harmful and injurious to live with the respondent any further. Even otherwise, from the finding which has been recorded by the Family Court, we find that it has been held that plaintiff-husband and the wife both had been cruel to each other and have acted in a manner which has resulted in mental cruelty to each other. If such is the situation, the proviso to Section 14 of the Divorce Act, comes into play and in that circumstance, the husband would not be entitled to the decree of divorce. If such is the situation, the proviso to Section 14 of the Divorce Act, comes into play and in that circumstance, the husband would not be entitled to the decree of divorce. For ready reference, proviso to Section 14 of the Divorce Act is reproduced hereinunder : “Provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct of or towards the other party as has conduced to the adultery.” 13. For all the aforesaid reasons and having examined the material on record, we do not find any good ground to interfere with the impugned judgment and decree passed by the Family Court refusing to grant the decree of divorce as prayed for by the husband. This appeal is dismissed. 14. At this stage, Sri Ravi Kant submits that now the period of desertion has continued for more than two years. If such is the situation, it is left open for the husband to file a fresh suit for divorce on that ground.