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2017 DIGILAW 338 (UTT)

Sanjay Singh Rawat v. Kavita Rawat

2017-06-29

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. It is a husband’s appeal against the rejection of his suit, being Matrimonial Suit No. 144 of 2011 “Sanjay Singh Rawat vs. Smt. Kavita Rawat”, which he has preferred before the Family Court, Pauri Garhwal, wherein proceedings under Section 13(1)(i-a) of Hindu Marriage Act, 1955, seeking dissolution of marriage, said to have been solemnized on 09.05.2002 with the respondent, has been dismissed. 2. Brief facts of the case as argued by the learned counsel for the parties before us were that the appellant had filed a petition before the Family Court on 18.10.2011, seeking to dissolve the marriage dated 09.05.2002. 3. According to the plaint, as a consequence of the marriage, two sons, namely Ayush and Aryan were born, who, at the time of institution of proceedings under Section 13 of the Hindu Marriage Act were of 8 years 4 years of age respectively. 4. The basis of the proceedings under Section 13 was the cruelty as having a very placid attitude which was maintained by the respondent in matrimonial relationship. According to the husband, he made all the efforts to keep the family in a better conditions and made all the efforts to keep his wife happy, but he failed. 5. In the plaint, the husband stated that he was engaged in the Armed forces and on his superannuation, he join the Govt. Inter College, Mandai as an Assistant Teacher. During the intervening period and after the marriage, the wife completed her B.Ed from Meerut University and is working as Lecturer in the Govt. College in Donda Khal. 6. The respondent stated that for the last two years, the attitude of the respondent became too arrogant and un-conducive as she often now and then was creating trouble for the appellant, as well as for the family members by raising false allegations, to the effect that the appellant has got illicit relationship with his real sister, Sandhya, and used to spend part of his earning on her. 7. It was the case of the appellant before us, that since he, after quitting his job from the Armed Forces, joined the Govt. Inter College as an Assistant Teacher and the respondent was appointed as a Lecturer. She was the victim of superiority complex as against her own husband. 8. 7. It was the case of the appellant before us, that since he, after quitting his job from the Armed Forces, joined the Govt. Inter College as an Assistant Teacher and the respondent was appointed as a Lecturer. She was the victim of superiority complex as against her own husband. 8. The basis of the allegations was that for the last two years, whenever he visited, he found that she always was in a furious mood, quarreling with the mother-in-law and sister-in-law, even so much so physically assaulting the mother of the appellant. Owing to the attitude of the respondent, no relatives or even friends ever made an effort to visit the house of the appellant. 9. It is the case of the appellant that the wife respondent used to often threaten him and his family members by alleging the false complaint against them, and after giving divorce to appellant, she will be spending her life peacefully. 10. In the plaint, it was also asserted that she used to send filthy messages on the mobile number of the appellant, using unparliamentary language. When all the efforts made to sustain the matrimony failed, the appellant had lodged a proceeding under Section 9 of the Hindu Marriage Act, 1955, which was registered before learned Principal Judge, Pauri Garhwal as Matrimonial Case no. 109 of 2010 “Sanjay Singh Rawat Vs. Smt. Kavita Rawat. Later on, the said case was withdrawn because the circumstances showed that there is no possibility of restoration of marriage. In the suit under Section 13(1) (i-a), the notices were issued. Respondent appeared and when the Court tried to make efforts for settlement of the controversy, respondent stopped attending the proceedings and thus the court below had no option except to direct the case to proceed ex parte vide order dated 11.09.2012. 11. In the suit under Section 13(1) (i-a), the notices were issued. Respondent appeared and when the Court tried to make efforts for settlement of the controversy, respondent stopped attending the proceedings and thus the court below had no option except to direct the case to proceed ex parte vide order dated 11.09.2012. 11. The more practical importance, however, of this relief by way of a decree for restitution of conjugal rights is that it affords a ground for divorce to either party under Section 13(1A) which lays down that either party to a marriage, whether solemnized before or after the commencement of the Act, may obtain a decree of divorce on the ground that there has been no restitution of conjugal rights between them for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. 12. The learned family court by the impugned judgment, which was ex parte, proceeded to dismiss the suit for dissolution of marriage under Section 13(1)(i-a). While recording the conclusion, the Court placed reliance on the written statement, which was filed by the respondent in the proceedings under Section 9 of the Hindu Marriage Act, 1955. 13. The written statement filed in the proceedings under Section 9, cannot be relied and its pleadings cannot be taken into consideration for the purposes of deciding the case under Section 13 (1)(i-a) of the Hindu Marriage Act, 1955, more particularly when the proceedings under Section 9 was dismissed as withdrawn by the appellant and when there was no adjudication on merits on the pleadings of the parties. 14. In para 14 of the written statement, filed in the proceedings under Section 9, respondent raised allegations to the effect that the appellant has got illicit relationship with his sister namely Sandhya and used to talk to her late night and also that he used to spend major part of his earning on his sister. 15. Later on, according to the appellant, when he realized that there is no possibility to sustain the marriage, the proceedings under Section 9 of the Hindu Marriage Act, 1955, was withdrawn on 12.10.2011. In the impugned order, the learned family court has placed reliance on the findings recording in the withdrawal application on 12.10.2011 in Case No. 109 of 2011, under Section 9 of the Hindu Marriage Act, 1955. In the impugned order, the learned family court has placed reliance on the findings recording in the withdrawal application on 12.10.2011 in Case No. 109 of 2011, under Section 9 of the Hindu Marriage Act, 1955. The reason for withdrawal, in the application paper no. 18 Ga filed under Section 9 was that he does not want to keep his wife and wants to withdraw the case. 16. Heard Mr. B.D. Upadhyaya, learned Senior Counsel for the respondent who stated that the proceedings under Section 13 was bad because the same was instituted within a week from the date of withdrawal of the case under Section 9, by the order dated 12.10.2011. This contention of the learned Senior Counsel for the respondent is not acceptable. The reason being that the proceedings under Section 9, will have no bearing on the proceedings under Section 13 as by withdrawal of Section 9, there is no legal bar created in the eyes of law, restraining the party to the lis for not instituting Section 13. Because we feel that the cause of action for Section 13 would always be treated as to be having a recurring cause of action on the grounds given under Section 13 of the Hindu Marriage Act. This fact stands corroborated by the contents of application paper no. 18 Ga, filed by the appellant in the proceedings under Section 9 of the Hindu Marriage Act, 1955. 17. Learned Senior Counsel for the respondent drew the attention of ours to para 14 of the impugned judgment. The impugned judgment reflects the pleading of para 15 of Section 9 application as submitted by the appellant. Para 14 of the judgment, when it refers to para 15 of the application under Section 9, it was a foundation stone for institution of Section 9, expressing that the appellant under Section 9 in the present appeal, loves and cares for his wife and wants to spend his life with her, which is the basic condition showing bend of mind to restore marriage. 18. The court below, as well as, learned Senior Counsel for the respondent mis-interpreted the contents of para 15 of the application under Section 9 for the purposes of deciding Section 13. An expression of love and affection cannot be taken as to be the basis for denying the relief of dissolution of marriage. 18. The court below, as well as, learned Senior Counsel for the respondent mis-interpreted the contents of para 15 of the application under Section 9 for the purposes of deciding Section 13. An expression of love and affection cannot be taken as to be the basis for denying the relief of dissolution of marriage. Particularly, when the proceedings, in which the plea of love and affection, which has been taken, has been dismissed as withdrawn. With the withdrawal of Section 9 by the order dated 12.10.2011, the plea of para 15 also loses its significance. 19. The learned Family Court recorded an absolutely perverse finding based on para 15 of Section 9 application to the effect that the husband has exonerated the wife for any cruelty based on the pleading raised in para 9. This finding is absolutely perverse because the aforesaid fact has not undergone the test of evidence as Section 9 has not adjudicated on merits. 20. Looking to the conduct of the wife and her behavior as against the appellant by stooping low to even raising an allegation of husband having illicit relationship with the real sister. We feel this leads to a conclusion that this allegation itself will amount to be a cruelty within the ambit of Section 13 and sufficient enough to grant a decree of divorce of no sane person, no sane husband would ever remotedly think of spending his life with a lady of such a temperament who without any basis can level an allegation of illicit relationship with real sister, which is unthinkable as allegation by respondent not established and was hypothetical. Apart from it, in view of the grounds taken in the suit sustaining the cruelty, this Court feels that the rational as assigned by the court below for dismissing the suit is being perverse and deserves to be set aside. 21. The Hindu Marriage Act, 1955 deals with various phases of matrimonial life and the forum and circumstances for its redressal, the provisions of Section 9 and Section 13 are independent, which is to be settled by independent evidences qua the disputes of between the parties. The same principle is to be followed in the proceedings under Section 13. 22. 21. The Hindu Marriage Act, 1955 deals with various phases of matrimonial life and the forum and circumstances for its redressal, the provisions of Section 9 and Section 13 are independent, which is to be settled by independent evidences qua the disputes of between the parties. The same principle is to be followed in the proceedings under Section 13. 22. Learned counsel for the appellant, to substantiate his case that the allegations of having illicit relationship with the real sister will falls to be within the purview of cruelty as defined under Section 13(1)(i-a) and would be a ground sufficient for dissolution of marriage. In support of his contention, he placed reliance on a judgment rendered by Division Bench of Hon’ble Apex Court in AIR 1994, SC 710 the case of V. Bhagat vs. Mrs. D. Bhagat wherein the Hon’ble Apex Court has dealt with the concept of mental cruelty and what would constitute to be the mental cruelty, if a party to matrimonial proceedings raises an allegation of adultery or character assassination by making a statement in the written statement and placing question of such nature to the husband, it will not amount to be cruelty. For convenience, para 17 and para 18 of the said judgment are reproduced herein below:- 17. Mental cruelty in S. 13(1)ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 18. At this stage, we may refer to a few decisions of this Court rendered u/S. 13(1)(i-a). In Shobha Rani v. Madhukar Reddi. (1988) 1 SCC 105 : ( AIR 1988 SC 121 ), Justice K. Jagannatha Shetty, speaking for the Division Bench, held (at p. 123 of AIR): “Section 13(1)(i-a) uses the words “treated the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It 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. It is a course of 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 to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second the impact of such treatment on 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 talking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injuries effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. In such cases, the cruelty will be established if the conduct itself is proved or admitted. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in “the categories of cruelty are not closed”. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.” 23. Another judgment on which the reliance has been placed by the learned counsel for the appellant is reported in AIR 2002 Vol. IV page 596 in the case of Praveen Mehta Vs. Inderjit Mehta. This judgment dealt with the term cruelty which finds place Section 13(1)(i-a) of the Hindu Marriage Act and it has been laid down that the term cruelty will take within its ambit of physical as well as mental cruelty. In this judgment, it is held that the cruelty has also to be considered on the basis of the conduct of the parties. In this judgment, it is held that the cruelty has also to be considered on the basis of the conduct of the parties. It has laid down in para 19 of its judgment that Section 13 is comprehensive enough to include the cases of physical as well as mental cruelty because in the modern era, mental cruelty can be more serious and grievous, then a physical cruelty as it is an injury which inflicts the mind. Para 19 of the said judgment is quoted herein below: “19. Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that metal cruelty can cause even more grievous injury and create in the mid of injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. The mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91).” 24. We are an absolute agreement with the proposition laid down by the Hon’ble Apex Court while dealing with the issue as to what would constitute to be the mental cruelty, as the same is in the instant case is fully applicable because of the nature of pleadings which is absolutely in humanistic and averse to the principles of the Hindu Society and contrary to the concept of maintenance of dignity of pious relationship of brother and sister. 25. In the case at hand, since Section 9 was not adjudicated on merits and was dismissed as withdrawn by the appellant on 12.10.2011, it was absolutely unjustified for the court below to attract the pleadings of Section 9. To make it as a basis for deciding Section 13, more particularly, that the allegation of Section 9 had not been settled after the decision on merits. Looking to the plaint allegations and the surrounding circumstances, this Court feels that the instant appeal deserves to be allowed. To make it as a basis for deciding Section 13, more particularly, that the allegation of Section 9 had not been settled after the decision on merits. Looking to the plaint allegations and the surrounding circumstances, this Court feels that the instant appeal deserves to be allowed. Hence, the impugned order dated 11.12.2012, dismissing the petition of the appellant preferred under Section 13(1)(i-a) of Hindu Marriage Act is set aside and the suit of the appellant being Suit No. 144 of 2011 “Sanjay Singh Rawat Vs. Kavita Rawat, seeking dissolution of marriage dated 09.05.2002 is decreed and is hereby dissolved. 26. Registry is directed to prepare the decree of dissolution of marriage accordingly. No order as to costs.