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2017 DIGILAW 413 (JHR)

Manju Kumari Singh @ Smt. Manju Singh v. Avinash Kumar Singh

2017-02-28

H.C.MISHRA, S.N.PATHAK

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JUDGMENT : S.N. Pathak, J. Heard learned counsel for the appellant and learned counsel for the respondent. 2. The appellant is aggrieved by the Judgment dated 23.12.2002 and Decree signed on 06.01.2003, passed by learned Principal Judge, Family Court, Singhbhum East at Jamshedpur in Matrimonial Suit No. 40/2001, whereby the application under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 filed by the applicant Avinash Kumar Singh (respondent herein) for dissolution of marriage against his wife (respondent) Smt. Manju Singh (appellant herein) by decree of divorce on the ground of cruelty and desertion, which was decreed in his favour and decree of divorce was issued. 3. Before going into merits of the case, it will be proper to mention some facts as this case has got a chequered history. Matrimonial Suit No. 40/2001 was filed by husband for decree of divorce. The said Suit was decreed in favour of the husband which was a matter of challenge in F.A. No. 51/2004 by wife. The High Court, vide its order dated 28.05.2010, affirmed the earlier order passed on 24.09.2008 affirming the order passed by Court below, para-15 thereof reads as under: “15. After having given our anxious consideration on the facts of the case and the principles laid down by the Supreme Court in catena of decisions, we are of the view that any attempt of reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties between the parties, since the marriage has been broken down irretrievably. Following the decision of the Supreme Court, we are further of the view that since the marriage between the parties is dead for all purposes and there is no chance of its being retrieved, the continuance of such marriage would itself amount to cruelty and accordingly, we hold that the marriage of the appellant and the respondent shall stand dissolved. However, considering the fact that it is the respondent husband who is adamant not to continue the marital relation, we direct the respondent to pay a sum of Rs. Two Lacs. by way of permanent alimony to the appellant which shall be the condition for dissolution of marriage. However, considering the fact that it is the respondent husband who is adamant not to continue the marital relation, we direct the respondent to pay a sum of Rs. Two Lacs. by way of permanent alimony to the appellant which shall be the condition for dissolution of marriage. It is also made clear that the respondent shall continue payment of alimony @Rs.2,500/- (Rupees Two thousand and five hundred only) per month as maintenance for the child.” The appellant -wife before the High Court challenged the said order before the Hon'ble Supreme Court in Civil Appeal No. 245/2015. The Hon'ble Supreme Court allowed the appeal, quashed the order of the High Court and remanded back the matter for fresh hearing vide its order dated 09.01.2015. Being dissatisfied with the Order of the Supreme Court dated 09.01.2015, the respondent husband preferred Review Petition No. 1724/2015 in Civil Appeal No. 245/2015, which was dismissed vide order dated 14.07.2015 and as such, in view of order of the Supreme Court passed in Civil Appeal, the matter is being heard afresh. 4. From the factual exposition as has been stated in the plaint is that Avinash Kumar Singh, the applicant in the suit was married with the respondent Manju Singh on 16.02.1997 at TELCO Colony, Jamshedpur according to Hindu rites and customs. After solemnization of marriage, both husband and wife lived together at Govindpur, Jamshedpur till 3rd week of April, 1997. The marriage was duly consummated. As the applicant was a practicing advocate before Hon'ble Patna High Court, he returned to Patna whereas the respondent-wife continued to live in her matrimonial house at Jamshedpur. It is alleged that applicant and the members of his family treated the respondent (appellant herein) with all love and dignity and he had assured that as soon as he gets a suitable accommodation at Patna, he will take her and thereafter they will lead married life at Patna itself. It is alleged that behavior of the respondent-wife with parents of the applicant became extremely bad. She started misbehaving with the applicant as well as the parents and was not prepared to do any household works and being asked to do anything, she used to abuse and threatened of dire consequences. The parents of the applicant were abused and insulted in front of relatives and friends. Because of her behavior, the parents of the applicant suffered mental torture. 5. The parents of the applicant were abused and insulted in front of relatives and friends. Because of her behavior, the parents of the applicant suffered mental torture. 5. The case of the applicant (respondent herein) is that all these actions of the respondent-wife were due to non-fulfillment of her demand for heavy amount of money for shopping expenses. Though the applicant fulfilled her demand as per his capacity but the desire of the respondent – wife were endless and she was never satisfied and continued misbehaving and insulting members of the family as well as the applicant. It has been stated that since the applicant left for Patna in 3rd week of April, 1997, the respondent – wife went back to her parent house without consent and knowledge of the applicant or his parent. It has been further stated that the respondent never paid any regard to his parent and without their consent went to her parent's house. Even after several requests, she did not return to her matrimonial house. It is further stated that he was forced to take his wife to Patna though there was no proper accommodation but there also his wife misbehaved with him and without his consent, left Patna in the same evening against desire of the applicant. This also created mental torture. It is further case of the applicant that though on request the respondent–wife came for day or two, she deserted his house and went to her parent's house. On 22.06.1998 father of the applicant suffered brain hemorrhage. Though on request she came back but left house on 01.08.1998 itself. She completely deserted her matrimonial house and in the mean time she became pregnant in the month of July, 1998 and continued to live at her parent's house. Even the pregnancy was not made known to the husband and he came to know only after birth of the child. During his visit to in-law's house to see the child, the applicant was prevented from meeting the newly born baby and he was badly abused and was asked to leave the in-law's house immediately. Even the pregnancy was not made known to the husband and he came to know only after birth of the child. During his visit to in-law's house to see the child, the applicant was prevented from meeting the newly born baby and he was badly abused and was asked to leave the in-law's house immediately. It is further case of the applicant that respondent, in collusion with his father, tried to harass family members of the applicant by filing false criminal case on 20.10.1999 against the applicant, his brother and parent under the provisions of 498A of the Indian Penal Code as also under the Dowry Prohibition Act. Though the applicant was granted bail but he was convicted in the case under Section 498A of the Indian Penal Code and on appeal to the High Court he was acquitted. The applicant remaining in jail on conviction and fighting the case up to the Apex Court, was taken as a step for showing cruelty on part of the respondent towards the husband/applicant. The aforesaid conduct of the respondent caused severe mental and physical torture to the applicant as well as his family members and as such in the aforesaid circumstances all attempts for reconciliation made by the applicant ended in failure. Now there is no chance of restoration of normal matrimonial life between the parties and, therefore, case for dissolution of marriage by decree of divorce was brought. 6. Mr. Rahul Gupta, learned counsel appearing for the appellant-opposite party vehemently opposed dissolution of marriage and argued that all the allegations against the respondents are false and fabricated. Though the marriage was admitted but it has been stated on behalf of the respondent that before her marriage, her parents were put under mental agony and harassment. The applicant did not turn on the fixed Tilak Ceremony on 12.02.1997 and it was held on 15.02.1997 followed by the marriage. She denied that both the parties lived as husband and wife till last week of April, 1997. It is case of the respondent that applicant's parent always demanded dowry in form of Maruti Car and cost of furniture for Chamber of the applicant at Patna. She was always warned with facing dire consequences if she does not return to her matrimonial house with car and money for his Chamber. It is case of the respondent that applicant's parent always demanded dowry in form of Maruti Car and cost of furniture for Chamber of the applicant at Patna. She was always warned with facing dire consequences if she does not return to her matrimonial house with car and money for his Chamber. She was never treated with dignity and the applicant as well as his parent behaved in a rude manner and mother of the applicant was never satisfied with golden ornaments at the time of marriage. Her in-laws were never happy as her father did not oblige them by giving car and cost of furniture in the Chamber at Patna. They used to misbehave at every occasion and always tried finding fault at her. She never threatened the applicant's parents in presence of relatives and friend and on the contrary, she was subjected to various types of cruelty, indignity and harassment by the applicant and his parents. It was argued by Mr. Rahul Gupta that the opposite party never demanded money as she herself was a teacher earning Rs.5,000/- per month and therefore, she was financially independent. On the contrary parent of the applicant used to threaten to drive away the applicant from the house. It was argued that the applicant is himself guilty who has not made any contact with the respondent in spite of sincere efforts made by her. Her father and mother went to house of the applicant and requested to come to the respondent but went in vein. She has denied allegation that she treated the applicant rudely. On the contrary, she was subjected to cruelty and as such she was constrained to take legal action against the applicant and his parent which gave rise to institution of Telco (Govindpur) P.S. Case No. 204/199 for the offence under Sections 323/341/304/307/409-A read with Section 3/4 Dowry Prohibition Act. 7. During trial four witnesses were examined on behalf of the applicant including himself whereas the respondent also examined four witnesses in support of her case. 8. Five issues were framed by the learned Trial Court : (i) Is the suit, as framed, maintainable in law? (ii) Whether the applicant has got of cause of action and right to sue? (iii) Whether the applicant is entitled to the relief of decree of divorce on grounds of cruelty and desertion? 8. Five issues were framed by the learned Trial Court : (i) Is the suit, as framed, maintainable in law? (ii) Whether the applicant has got of cause of action and right to sue? (iii) Whether the applicant is entitled to the relief of decree of divorce on grounds of cruelty and desertion? (iv) Whether the applicant is a guilty spouse as provided under section 23(i)(a) of the Hindu Marriage Act? (v) To what relief or relief’s the applicant is entitled to? 9. The issue no. (i) was decided in favour of the applicant as the suit was maintainable and no defects were pointed out. Issue no. (iii) regarding entitlement of decree of divorce on ground of cruelty and desertion, it was held that the applicant has alleged cruelty against his wife. The applicant joined bar in the year 1995 while the respondent was working as a teacher much before their marriage. It has been alleged that soon after their marriage, the respondent used to frequently go to her parent's house without any information to the members of the family and all the frequent visits were made in absence of the applicant-husband. It was also alleged that the respondent was not interested in domestic work and always caused annoyance to the members of his family. She never obeyed his wishes and did not respect his parent. His parents were insulted and he was also often abused. The applicant in his evidence (AW-1) stated that during summer vacation of 1997, he came to Jamshedpur on 22.05.1997 and he found his wife not present in her marital house. Though he went to his Sasural to bring her back but she did not agree to return. The incidence of cruelty, as stated by AW-1/applicant that when parents went to the village Begusarai, the applicant was alone in the house at time of summer vacation and wanted the wife to come to her marital house but she did not agreed to it and choose to come there, rather, it was alleged that as the applicant had accompanied his parents to Begusarai, therefore she did not join her husband. The other ground of cruelty, as stated by the applicant that when on pressure he took his wife to Patna where she abused her and on the same day she fled away to Jamshedpur without his consent and deserted. The other ground of cruelty, as stated by the applicant that when on pressure he took his wife to Patna where she abused her and on the same day she fled away to Jamshedpur without his consent and deserted. The incident has been fully corroborated by AW-3 – Jai Prakash Narayan Rai who was landlord of the applicant's house. On 22.06.1998, father of the applicant suffered brain hemorrhage and was admitted in Telco Hospital. There also, though on request, the respondent – wife came to see her father-in-law but when the husband returned to Patna on 31.07.1998, the very first day i.e. 01.09.1998, the respondent-wife also left her matrimonial house and went back to her parent's house. The next incidence of cruelty comes from the fact that though she conceived but the fact of pregnancy was never informed to the applicant. Though she gave birth to a female child but never informed her husband and when the applicant's husband visited the in-laws house, he was insulted and asked to leave immediately. The relations of both – husband and wife, were strained because of cruel behaviour of respondent – wife. The aforesaid facts were corroborated by the evidence of respondent’s witness No. 1 and the respondent’s witness No. 2. Filing of criminal case and conviction of the appellant strained the relations further. 10. On the basis of the evidence it can safely be held that conduct and acts of the respondent – wife amounts to cruelty to the applicant-husband and members of his family. The fact remains that the respondent was acquitted in the criminal case by the Appellate Court Below but the appellant-wife challenged the judgment of acquittal by Revision in the High Court and upon its dismissal, also challenged the same before the Hon’ble Supreme Court, which was also dismissed. This itself amounts to cruelty against the husband. 11. So far the allegations of desertion is concerned, the applicant had stated in his evidence that his wife frequently visited her parent's house without any information to the in-laws or the husband. This itself amounts to cruelty against the husband. 11. So far the allegations of desertion is concerned, the applicant had stated in his evidence that his wife frequently visited her parent's house without any information to the in-laws or the husband. The incidence of fleeing away at the time when father of the applicant suffered heart attack and was hospitalised, not joining her husband at the time of summer vacation when he remained alone at the house, fleeing away from Patna without consent of the applicant-husband, all these go to show that the respondent-wife completely deserted the applicant-husband and she never wanted to join her husband though on several occasions the husband went to his in-laws house to bring her back. The only period she remained at her in-laws house from 27.06.1998 to 31.07.1998 and went back to her parent's house on 01.08.1998. The father had also stated that the respondent is not living in the matrimonial house since 01.08.1998 and she lived for a total period of four months in her matrimonial house and rest period spent at her parent's house and therefore, it can be inferred that the respondent-wife completely deserted her husband as not staying in the marital house. The Court below found that there was element of animus diserendi between both the parties and due to this hostility, the respondent-wife never wanted to live at her marital house and finally deserted on 01.08.1998 and the suit was filed on 15.03.2001 i.e. after a period of more than two years from the date of desertion by the respondent. 12. Going through the evidences and documents on record, the learned Trial Court came to the conclusion that the applicant had proved the ground of cruelty and desertion against the respondent-wife and as such, the issue regarding decree of divorce on the ground of cruelty and desertion was decided in favour of the applicant. Similarly, the issue nos. 2, 4 and 5 were decided in favour of the applicant. 13. Challenging the order dated 23.12.2002, the learned counsel for the appellant/opposite party submitted that the learned Court below has wrongly held that the opposite party has committed cruelty on the husband which was not proved by the evidence and in fact the applicant himself was guilty spouse. Mr. 2, 4 and 5 were decided in favour of the applicant. 13. Challenging the order dated 23.12.2002, the learned counsel for the appellant/opposite party submitted that the learned Court below has wrongly held that the opposite party has committed cruelty on the husband which was not proved by the evidence and in fact the applicant himself was guilty spouse. Mr. Rahul Gupta, in course of arguments heavily relied on the decision of the Apex Court in the Case of Gurbux Singh Vs. Harminder Kaur reported in (2010) 14 SCC 301 and further drew attention of the Court in para-16 thereof, which reads as under:- “16. 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 characterised 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. Both the appellant and the respondent being highly qualified persons, the appellant being Principal in ITI College, the respondent working as a Librarian in a government institute, an isolated friction on some occasion like festival of lohri even in the presence of others cannot be a valid ground for dissolving the marriage.” 14. Per contra, Mr. Mahesh Tewari, learned counsel appearing for the applicant-husband vehemently opposed the submission of the learned counsel for the appellant and justified the stand taken by the Court below and the findings derived. In order to strengthen his arguments, learned counsel submitted that dragging the respondent – husband up to the Apex Court itself amounts to cruelty. Mr. Mahesh Tewari has placed reliance on the decisions of the Hon'ble Apex Court in the case of Vinod Kumar Subbiah Vs. In order to strengthen his arguments, learned counsel submitted that dragging the respondent – husband up to the Apex Court itself amounts to cruelty. Mr. Mahesh Tewari has placed reliance on the decisions of the Hon'ble Apex Court in the case of Vinod Kumar Subbiah Vs. Saraswathi Palaniappan reported in (2015) 8 SCC 336 and has referred para 6 to 9 thereof. Learned counsel further relied in the case of K. Srinivas Rao Vs. D.A. Deepa reported in (2013) 5 SCC 226 and referred para 10 to 16 thereof. He has further placed reliance in the case of Naveen Kohli Vs. Neelu Kohli reported in (2006) 4 SCC 558 . 15. Having gone through the rival submission of the parties, we are of the view that the main issues involved in the suit were cruelty and desertion. Both the issues have been proved in favour of the applicant/husband and the opposite party has miserably failed to establish that the suit is not maintainable and the applicant is not entitled for decree of divorce. Considering the facts and circumstances and the legal proposition and the factum that cruelty and desertion both have been proved, it is a fit case for dissolution of marriage and as such, the learned Trial Court has rightly issued decree of divorce. The Judgment relied upon by counsel for the appellant does not come to the rescue in view of the fact that cruelty and desertion have been proved in favour of the husband and the decision relied upon by learned counsel for the respondent fully supports the contention. 16. In view of aforesaid facts and Judgments discussed above, the impugned Judgment and Decree warrant no interference and as such, the instant appeal is dismissed. No order as to costs. H.C. Mishra, J. – I agree.