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2017 DIGILAW 317 (UTT)

BASANT BALLABH BHATT v. REKHA BHATT

2017-06-12

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. In the Indian Social System matrimony plays a pivotal role where harmony in relationship is seldom to be severed on trifle issues particularly a matrimonial relation in the instant case which subsisted for last more than three decades. 2. The appellant herein is a plaintiff/husband who challenges the judgment dated 04.08.2016, rendered by the Family Court, Nainital, whereby his Suit No.166 of 2011, filed under Section of the Hindu Marriage Act, seeking dissolution of marriage as solemnized with the defendant/respondent on 20.05.1986 was sought to be dissolved. 3. Heard Mr. Akhil Kumar Shah, Advocate for the appellant and Mr. Ghanshyam Joshi, Advocate for the respondent (wife). The appellant on 03.09.2011, had instituted the suit invoking section 13 (1) of the Hindu Marriage Act, registered as Suit No.166 of 2011, alleging thereof that on account of minor altercations, and on account of the defendant/wife often now and then have been visited the in-laws of plaintiff, and coupled with the fact she has not returned back from her parents place despite of several earnest request being made by the appellant, it would tantamount to be a cruelty. 4. In the plaint he contended that he feeling the said behaviour of the respondent being normal in nature endured it but when it became unbearable it lead to a situation where the marriage could not be continued, hence necessity arose to file the suit under section 13 (1) of the Hindu Marriage Act. 5. According to the plaint, allegation was that out of the marriage, the appellant had five children i.e., four daughters and one son Lalit Mohan. He pleaded that since he being a person of meager means as he was working as a labourer, yet he had made all efforts to ensure that he is able to provide all amenities to the respondent, but she on account of the influence, which was being exercised by the in-laws of the appellant had not mended her attitude and continued to exercise cruelty by exerting mental torture. 6. It was further pleaded that he was entitled for decree of divorce because the defendant/respondent herein has voluntarily deserted the appellant and has left the house without assigning any reasons or informing and has went out at her volition after taking away all her Stridhan and other valuables. 6. It was further pleaded that he was entitled for decree of divorce because the defendant/respondent herein has voluntarily deserted the appellant and has left the house without assigning any reasons or informing and has went out at her volition after taking away all her Stridhan and other valuables. It was contended by the appellant that despite of several request being made, the same was not acceded to by the respondent, he also made an effort by visiting the home of the respondent along with some of the relatives and friends but it yielded no result and the persons visiting the in-laws of the appellant had misbehaved and hurled abuses and thus they were forced to return. In para 7 of the plaint, the appellant contended that the marriage of four daughters of the appellant was solemnized but because of the adamant attitude of the respondent despite of invitation being extended to her to participate in the marriage of the daughters, she had not participated as a consequence there too, he was rendered incapacitated to perform his honours duty for which every hindu father aspires is expected to discharge i.e. of giving "kanyadan". He stated that the attitude of the respondent was so adamant that even on the death of the only son Lalit Mohan on 14.08.2010, the information of the same was given to her but still she had chosen not to attend the funeral or any of the ceremonies thereafter, what to say about this, she even has not attended once to call upon her ailing son, who subsequently met with the sad demise. He pleaded that since there is no matrimonial relationship established for last 11 years, since the respondent had been adamant by not participating in the marriage of her daughters, since she has not participated in the funeral of her son Lalit Mohan, and since she has voluntarily deserted the appellant on 04.03.2004, it has practically become difficult to continue the matrimony and hence, he has sought for a decree of divorce. 7. 7. On issuance of notice, the respondent herein in the appeal appeared before the Court below and filed her written statement denying the plaint allegations, the written statement was accompanied with the application under section 24 of the Hindu Marriage Act, seeking pendente lite maintenance as well as the litigation expenses (which is not relevant at this juncture for the purposes of deciding the present first appeal). She stated that out of the marriage there were six children born, out of which five daughters and one of the daughters expired during her childhood at the age of one and a half years. She while denying the plaint allegations stated that the appellant was in the habit of abusing the respondent and misbehaving with her both mentally and physically by causing personal injury, due to this attitude she has no recourse left except to visit her parents house to safeguard herself. 8. So far as, the theory of desertion on 04.03.2004, is concerned she contended that she was physically assaulted by the appellant and as a consequence of the physical assault her hand was fractured, and the appellant said that she may leave the house of his otherwise there would be a dire consequences. Besides the above pleading, she in her additional pleadings in the written statement paper no.21 ka contended that the entire suit is based upon a narration of wrong facts and the theory has developed therein with regards to the attitude of the respondent was a concocted story and she further stated that no such information or invitation with regards to the marriage of the daughter was ever sent or received by the respondent and there was no occasion of her to deny the participation in the marriage of her daughter. To support the respective pleading, the appellant herein recorded his own statement by submitting an affidavit in examination in chief and appeared in the witness box as PW-1, in support of his contention he has produced one Mrs. Hema Joshi (Daughter of appellant), who submitted her affidavit in examination in chief paper no.29 ka and her statement was recorded as PW-2 and one Smt. Jyoti Ktoliya, appeared as PW-3 and Shri Shiban Singh Bisht as PW-4. 9. The defendant/wife submitted her affidavit as paper no. Hema Joshi (Daughter of appellant), who submitted her affidavit in examination in chief paper no.29 ka and her statement was recorded as PW-2 and one Smt. Jyoti Ktoliya, appeared as PW-3 and Shri Shiban Singh Bisht as PW-4. 9. The defendant/wife submitted her affidavit as paper no. 40 ka and in oral testimony, she recorded her statement as DW-1 and the statement of one Smt. Radhika Joshi, to support her contentions. On exchange of pleadings the learned Family Court, framed the following issues:- (i) Whether on the basis of facts enumerated in the plaint that plaintiff has the right to get a decree of divorce against the respondent on the ground of cruel behaviour. (ii) Whether on the basis of facts enumerated in the plaint the respondent has deserted the plaintiff without any just and reasonable cause if yes the effort thereof. (iii) What relief should the plaintiff get? 10. The learned Trial Court while exercising powers under Order 14 and after finding that the facts regards to the cruel behaviour of the respondent as alleged by the appellant and the issue pertaining to the desertion of the plaintiff by the defendant, since involving a common question of facts and law, they are being decided together. 10. The learned Trial Court while exercising powers under Order 14 and after finding that the facts regards to the cruel behaviour of the respondent as alleged by the appellant and the issue pertaining to the desertion of the plaintiff by the defendant, since involving a common question of facts and law, they are being decided together. The learned Trial Court after considering the rival contentions including the oral testimony of the respective witnesses of either of the parties had come to the conclusion that as far as the statement of the plaintiff pertaining to a mental harassment at the behest of the respondent was concerned, it was admitted by him in his cross-examination that no such plea of mental harassment has been taken by him in his plaint, even so much so, the witness PW-2, who is the daughter of respondent stated that when the mother left the house on 04.03.2004, she was only 15 to 16 years of age and all the witnesses have alleged to have stated that the theory of cruelty and mental harassment which the appellant has contended to be the basis for the grant of decree of divorce were not supported by the oral testimony of the daughters, wherein they have stated in their cross examination that the aforesaid story has been told to her by paternal grand mother, the witnesses further stated that they themselves have personally not seen their being any element of mental harassment being committed on this basis no decree of divorce ought to be granted. Thus, the learned Trial Court has held that on perusal of the oral testimony and the evidence brought on record, it is not been proved and hence no conclusion could be drawn that the respondent had mentally harassed the plaintiff to constitute as a basis for dissolution of marriage, it was held that that cruelty was not proved. 11. Thus, the learned Trial Court has held that on perusal of the oral testimony and the evidence brought on record, it is not been proved and hence no conclusion could be drawn that the respondent had mentally harassed the plaintiff to constitute as a basis for dissolution of marriage, it was held that that cruelty was not proved. 11. This fact has also to be taken into consideration from the view point that admittedly on the date of the institution of the suit, the marriage has matured to a age of about 25 years and hence, propriety demanded that and rightly exercised by the Family Court, that at this fag end of life where there are grown up children who have their domestic responsibilities and social status, the marriage between the appellant and the respondent ought not to be permitted to be dissolved on such trifle allegations as mentioned in the plaint. Looking to its veracity, the marriage between the parties to the present appeal should not have been dissolved and hence the learned Trial Court has rightly dismissed the suit. The allegation pertaining to the respondent not attending the marriage of a daughter, the Trial Court has while considering the statement of PW-2 Mrs. Hema Joshi as well as in the examination in chief of the plaintiff has recorded a finding that it was establish beyond doubt that the plaintiff himself has not proved nor averred that he himself has given the invitation card to the respondent, if this is corroborated with the statement of Mrs. Hema Joshi PW-2, the daughter of the respondent, its goes to show that it is not very clear in the pleadings and evidence on record as to whom the invitation card of the marriage of the daughter was sent, to establish an effort made by the appellant to have sent the invitation card, no such person has been brought in the witness box who was given the responsibility of the distribution of invitation card and he had distributed the same to the respondent to establish aforesaid allege cruelty to constitute ground for divorce decree. Thus, the learned Trial Court rightly held it is proved that the appellant had never filed any proceedings by way of section 9 of the Hindu Marriage Act, making an effort of restitution of cognizable rights or any judicial proceedings to keep the respondent with him which shows the attitude of the appellant not to keep respondent as his wife and hence it could be deduced that the appellant has created a circumstances where the respondent was forced to live separately from the plaintiff. 12. The learned Trial Court while recording its finding has also come to a conclusion that the evidence and statement of witnesses prove that the appellant was in the habit of physically assaulting the respondent, and she was forced to leave the house on 04.03.2004 and no efforts was made by the appellant to keep his wife, and he created all circumstances to ensure that respondent declines to live with the appellant, hence it could be inferred that it was a self created circumstances at the behest of the appellant ensuring that the respondent does not join him to discharge her matrimonial obligations and thus the learned Trial Court after considering all the evidence on record including the cross-examination of the respective witnesses had come to the conclusion that the alleged cruelty is not being established and thus the marriage between the appellant and the respondent dated 28.03.1986, ought not to be dissolved as parameters of under Section 13 was not available by judicial verdict and looking to the facts and circumstances and the age of marriage, the same in the interest of the family at large ought to have been continued. 13. On an overall scrutiny, the learned Trial Court while deciding issue no.3 has rightly held that the factum of cruelty was not established, rather it was the circumstances which was created by the appellant himself to duress upon respondent that she leave the house of the appellant. 14. In that view of the matter, we feel that the judgment rendered on 04.08.2016 by the Family Court dismissing the Suit No.166 of 2011, filed by the appellant under section 13 of the Hindu Marriage Act, seeking dissolution of marriage dated 20.05.1986, do not suffer from any apparent legal or factual infirmity. Hence, the appeal fails and the same is dismissed.