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2017 DIGILAW 418 (UTT)

Rajesh Kumar v. Manisha @ Lalita

2017-07-28

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. The preamble of the Hindu Marriage Act is an enactment of the legislature which was formally regarded as a key to open the minds of the people and to avoid the mischief which was intended to be redressed by the Act. 2. The purpose of in certain elaborate preamble in the enactment was to give it a shape of a well settled law that cannot either be restricted or extended and enacted apart from what the language and the scope of the Act are. Under the legislative practice followed in India, it was felt to lay down a law relating to the formation of marriage or its dissolution and other allied matters in the same enactment. It almost governed all the aspects of the civilized society. 3. The system of marriage as it originates has its origin from the Rigveda and Smriti which have dealt with the marriage and its intricacies with meticulous care and study. But with the change of time, the enactment of the Hindu Marriage Act, 1955 was codified which was for the purposes to codify the law relating to the marriage amongst Hindus. Once a legislature codifies a law in a particular branch affecting the society it takes the shape of a social legislation. Hence any matter specifically dealt with by it should be sought for in the codified enactment itself and not outside the scope of an enactment. Hence, it has been held that where statute is expressly to codify the law, the Court has a Rule not at liberty to go outside the law so created simply because before the existence of an enactment another practice or law prevailed. Thus, as per the Hon’ble Apex Court has held out in AIR (2009) SC 1085 in the case of Gulli Pilli Sobhraj Rai Vs. Bandaru Bhawani it lays out that the codified laws of Hindu marriages to regulate it only this enactment can apply to marriage between Hindus. 4. Accordingly, the Hindu Marriage Act was enforced by making an assimilation of all aspects touching the Hindu marriage and that is why, it has been treated as to be a social legislation and it has been said that the fundamental principles of interpretation of a statute is that it should be construed according to the intent of legislature which passes it. That means to say as far as the Hindu Marriage Act is concerned, it is precise unambiguous and nothing more is necessary than to expand those word natural and ordinary sense and that is why the Hon’ble Apex Court in its judgment reported in AIR 1976 (4) SC 701 in the case of West Bengal Vs. Sudhir Chander has laid down that the intention of law giver cannot be defeated by the judicial construction being an Act otherwise would result into many cases which would frustrated enactment and defeat the judicial intention. The precise argument which would be dealt at later stage by the learned counsel for the appellant was to deal with the interpretation of documents in a liberal construction to meet the purposes of the Act. The Hon’ble Apex Court in the case of Reynolds Raj Money vs. Union of India reported in AIR 1982 SC 1261 has laid down that liberal construction does not mean adding what is not contemplated by the legislature in enacting in a particular statute. Under this backdrop, the Hindu Marriage Act was enacted. 5. Section 13 for the purposes of dissolution of marriage, the Hindu Marriage Act, 1955 provides the grounds narrated in Section 13 of the Act. None of the grounds other than the grounds mentioned in Section 13 for bringing a petition for dissolution of marriage would be applicable since it will fall to be outside the ambit of the legislature. The makers of the Hindu Marriage Act to govern the proceedings under the Act had made the provisions of the Act number 5 of 1908 that is the Code of Civil Procedure applicable in all its proceedings. Section 21 of the Act reads as under :- “21. Objections to jurisdiction. (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. Objections to jurisdiction. (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice. 6. With the effect of Section 21 would be that in the principal proceeding, the provisions of the Code of Civil Procedure before the trial court is made applicable and if Section 107 of the Code of Civil Procedure is read then it makes the provisions of the Code of Civil Procedure applicable before the First Appellate Court. Section 107 of CPC is quoted herein below:- 107. Powers of Appellate Court. – (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. 7. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. 7. It goes without saying that once Section 107 makes the provisions of Code of Civil Procedure applicable to the appellate proceedings if that is to read with Section 21 of the Hindu Marriage Act where the CPC is made applicable in that eventuality the provisions of Order 41 would apply to the proceedings before the appellate court. Under the Act of Act no. 8 of 1908 it is provided a special residuary contends under Section 151 where the Court can while exercising its inherent powers passed an order. Section 151 only contemplates a power with the Court to prevent the ends of justice or to prevent the abuse of the process of the Court. Section 151 of CPC is quoted herein below:- “151. Saving of inherent powers of Court – Nothing in this Code shall be deemed to limit or otherwise affect he inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” 8. The Hon’ble Apex Court while dealing with the purpose of Section 151 in its judgment reported in AIR 2008 SC 1190 in the case of State of U.P. and Ors. Vs. Roshan Singh (Dead) by LRs. and Ors. has held that the powers by the Court under Section 151 inherent powers could be exercised only when the Act no. 8 of 1908 is silent on a particular situation. Meaning thereby, it cannot be exercised for the benefit of litigant who has a remedy under the relevant statute. Para 7 of the said judgment is quoted herein below :- “7. The principles which regulate the exercise of inherent powers by a court have been highlighted in many cases. In matters with which the CPC does not deal with, the Court will exercise its inherent power to do justice between the parties which is warranted under the circumstances and which the necessities of the case require. The principles which regulate the exercise of inherent powers by a court have been highlighted in many cases. In matters with which the CPC does not deal with, the Court will exercise its inherent power to do justice between the parties which is warranted under the circumstances and which the necessities of the case require. If there are specific provisions of the CPC dealing with the particular topic and they expressly or necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the Court cannot be invoked in order to cut across the powers conferred by the CPC. The inherent powers of the Court are not to be used for the benefit of a litigant who has remedy under the CPC. Similar is the position vis-à-vis other statutes. The object of Section 151 CPC is to supplement and not to replace the remedies provided for in the CPC. Section 151 CPC will not be available when there is alternative remedy and same is accepted to be a well-settled ratio of law. The operative field of power being thus restricted, the same cannot be risen to inherent power. The inherent powers of the Court are in addition to the powers specifically conferred to it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on the Court power of making such orders as may be necessary for the ends of justice of the Court. Section 151 CPC cannot be invoked when there is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are concerned. Undisputedly, an aggrieved person is not remediless less under the Act.” 9. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are concerned. Undisputedly, an aggrieved person is not remediless less under the Act.” 9. An identical view pertaining to the effect of Section 101 was earlier laid down by the Hon’ble Apex Court in its judgment reported in AIR 2005 SC 242 in the case of National Institute of Mental Health and Neuroscience v. C. Paramesawara it has laid down that the provisions of the Code of Civil Procedure under Section 151 cannot be exercised so as to nullified the provisions of the Code it provides that where the Code of Civil Procedure deals expressly with a particular matter, the provisions should be normally be regarded as exhausted and the powers under Section 151 will not apply. Para 12 of the said judgment is quoted herein below:- 12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal: AIR 1962 SC 527 , it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High Court to bye-pass Section 10 CPC by invoking Section 151 CPC.” 10. Reverting back to the instant case. This is a case where the husband institutes a proceeding for dissolution of marriage dated 04.12.1998 solemnized with the respondent. On the ground that the wife was suffering from a disease called as “Obsessive compulsive disorder” which is a disease of the entry of schizophrenia and any untoward incident can be committed by the person suffering from the said disease. The case of the appellant was that on account of the said disease which the respondent was suffering, she used to indulge herself in very peculiar acts. For example; takes bath for a very long period; staying in the bathroom for a considerable long time; washing hands in quick intervals; brushing teeth for considerable long time etc. etc. 11. The case of the appellant was that on account of the said disease which the respondent was suffering, she used to indulge herself in very peculiar acts. For example; takes bath for a very long period; staying in the bathroom for a considerable long time; washing hands in quick intervals; brushing teeth for considerable long time etc. etc. 11. Based on the aforesaid symptoms the husband version before the court below was that at the time when the marriage was being settled, this fact of the respondent that she was suffering from this disease was concealed. He stated that to discharge his responsibility as husband and knowing about the ailment of the respondent, he tried to get the treatment from various hospitals and doctors at Delhi but the same yielded no result because despite of requests allegedly made by the husband, the wife did not acceded to take the medicines on time as prescribed by the doctors. Another ground which has been taken by him is that the respondent has declined to have any physical relationship or she used to posed to trouble in establishing the physical relationship hence it amounts to cruelty. 12. He admits the fact that out of the marriage in question, a son was born on 01.06.2000 but looking to the peculiar attitude; quarreling on small issues and the actions as mentioned above, he felt that continuous of marriage amongst themselves will not be conducive and thus he sought for dissolution of marriage by filling of the petition. 13. In the petition, he has also taken a ground on 22.08.2006. She has completely deserted the appellant by leaving the in-laws and going to her parent’s home. On the notices being issued, the respondent filed her written statement and made an effort to deny the plaint allegations. The learned Family Court, after exchange of the pleading, framed the following issues: 1-D;k Áfroknh@foi{kh us oknh@;kph ds lkFk Øwjrk dh gSA ;fn gka rks ÁHkko\ 2- D;k foi{kh tks vclsflo dEiyflo fMLvkWMZj ls xzflr Fkh ftls 'kknh ls igys u crkdj ckr fNikdj /kks[kk/kM+h dh gS\ 3- oknh fdl vuqrks”k ikus dk vf/kdkjh gS\ 14. The basic concern of issue no. 1 was with regards to cruelty and issue no. The basic concern of issue no. 1 was with regards to cruelty and issue no. 2 as to whether the respondent was suffering from the disease called as “Obsessive Compulsive Disorder” and as to whether this fact was concealed from him or being brought to the knowledge of the appellant at the time of marriage. The parties to the dispute led their evidences and the plaintiff filed his affidavit-in-chief paper No. 53 Ka and appeared in the witness box as PW1 and father of the appellant has appeared as PW2 and one Anshul was examined as PW3, whereas on the other hand the respondent herself appeared in the witness box and recorded her statement as DW1 and that the statement of Mahavir Prasad, the father of the respondent. The learned trial court, while dealing with the issue of cruelty and the grounds taken in the plaint after considering the rival contentions submitted that the grounds on which the husband was trying to seek the dissolution of marriage are prior to 22.08.2006 as both of them live together as husband and wife between 1998 to 2000. But according to the pleadings and evidences produced by the parties on most of the time she remained outside the home. PW2, the father of the PW1 was bound to accept the statement recorded by the appellant pertaining to the allegation of the disease with which it was stated that the respondent was suffering which was culminating into commission of cruelty. PW2 and PW3 invariably had remained consistent to their stand to the effect that the attitude of the respondent remained normal when she return from her parent’s home but after laps of sometime, she loose her balance and starts acting in the manner which has been referred in the pleadings of the parties for seeking dissolution of marriage. 15. In the cross-examination, the fact which stands admitted is that it is not come out from the statement of PW2 and PW3 as to on which date and time the said effect of disease they have witnessed. They rather denied that they have not seen when such disease has occurred. In the cross-examination of the plaintiff with the respondent it has come out that at the time when the suit was pending there have been no efforts made by the appellant for her treatment in any medical hospital. They rather denied that they have not seen when such disease has occurred. In the cross-examination of the plaintiff with the respondent it has come out that at the time when the suit was pending there have been no efforts made by the appellant for her treatment in any medical hospital. The learned trial court, while considering the statement and cross-examination of the witnesses pertaining to the peculiar behaviour which the respondent used to perform after her return from her parent’s home was not proved on record for the reason that the oral witnesses have not recorded their testimonies as to when and after what time such a disease was said to have occurred. 16. Although not relevant but the judgment also refers to a proceeding registered as Case No. 07 of 2008 “Rajesh Goyal vs. Mrs. Manisha under Section 12(1) Ga of the Hindu Marriage Act but it is an admitted case that the incident which has been mentioned in the present case was not referred to in the earlier proceedings of case no. 07 of 2008. But on an overall scrutiny and with regards to the plea that the plaintiff went to the residence of respondent to make her understand to come back and discharge her matrimonial obligation was not established. In view of the finding in the judgment impugned wherein no such event as to when they visited has come on record. 17. Similarly, while dealing with issue no. 2 pertaining to the disease, learned trial court held that looking to the pleadings raised by the parties, there is no such evidence brought on record by the appellant to show that the wife was suffering from the disease for which she has undergone treatment as it was contended by the appellant. The learned trial court held that the doctors, whose name find reference under whom the respondent has stated to have undergone the treatment were not produced before the court. Since the appellant has not proved the disease, its treatment, nor has produced the doctor under whom she was under treatment has held while deciding held issue no. 2 that in the absence of establishing his case beyond doubt with regards to the wife suffering from the disease of “Obsessive Compulsive Disorder”, the said issue cannot be decided in favour of the husband and accordingly it was rejected. 18. 2 that in the absence of establishing his case beyond doubt with regards to the wife suffering from the disease of “Obsessive Compulsive Disorder”, the said issue cannot be decided in favour of the husband and accordingly it was rejected. 18. The trial court held that for the purposes of determining as to what would constitute to be cruelty to dissolve the marriage there has to be something grave enough more than the normal cruelty. The Hon’bel Apex Court as reported in 2007 (4) SCC 511 in the case of Samar Ghosh Vs. Jaya Ghosh has laid down that the cruelty should be of such a magnitude. It would result into an irretrievable break down of marriage. The same aspect has been dealt by Hon’ble Apex Court in the judgment reported in AIR 1988 SC 2260 in the case of Ram Narain Gupta Vs. Rameshwari Gupta as also dealt with as to what would amount to a mental disorder for the purposes of attracting Section 13 of the Act. On being posed with the question by the Court as to what material did the appellant bring on record before the court to show that the respondent was suffering from the aforesaid mental disorder, he admitted that no documents as such in support of the wife suffering from the disease was placed on record. If this be so in a case under Section 13 where dissolution sought on the basis of cruelty the burden of cruelty has to be discharged by the person who claims a dissolution on that grounds if a party to the lis does not discharge that burden the court in the absence of sufficient evidence on the allegation for seeking dissolution of marriage cannot dissolve a marriage which under the Hindu Law is the sacrament and as well as in the havens. 19. Posed with the question the learned counsel for the appellant answered that he has annexed the documents in relation to the disease of the wife along with affidavit filed with the Stay Application. With all profound restrictions, this Court feels that the documents for the first time filed before the appellate court cannot be taken into consideration until and unless it is placed on record by virtue of law contemplated by the Court as applicable under Section 21 of the Hindu Marriage Act. With all profound restrictions, this Court feels that the documents for the first time filed before the appellate court cannot be taken into consideration until and unless it is placed on record by virtue of law contemplated by the Court as applicable under Section 21 of the Hindu Marriage Act. In an appeal, Stay application is contemplated under Order 41 Rule 5 or at the best, it could be said that it is contemplated under Section 151 CPC. Both the provisions either of the Order 41 Rule 5 or Section 151 of CPC cannot be taken as to be a substitute provision to bring an additional evidence on record for the first time at the appellate stage. Because CPC itself contemplates a provision by virtue of which other documents should be placed for consideration before the First Appellate Court i.e. Order 41 Rule 27. 20. There is no such application filed by the appellant to place the document on record to support their plea of mental disorder of the respondent and thus this Court feels that the documents filed in the affidavit in support of the stay application to show that the wife was suffering from a mental disease cannot be taken into consideration for deciding the instant appeal. 21. The analogy behind it is under that the law of evidence and pleadings it is the trial court which exercises the best jurisdiction to scrutinized the veracity of documents and that too after providing an opportunity to other side to controvert its contents, the appellate court does not enjoy that liberty to scrutinized the veracity of the documents and in particular when the documents relates to the period prior to the decision of the trial court it ought to have been brought on record before the trial court itself so that it could have been judiciously scrutinized by the court to analyze its baring and on the controversy. Hence the said documents on this ground itself also cannot be taken on record. Because it has been held out by the Hon’ble Apex Court in the judgment reported in AIR 1983 SC 114 in the case of Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Ors. that the First Appellate Court does not intervolved the advantage which the trial court has scrutinizing the evidence. Because it has been held out by the Hon’ble Apex Court in the judgment reported in AIR 1983 SC 114 in the case of Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Ors. that the First Appellate Court does not intervolved the advantage which the trial court has scrutinizing the evidence. Even in the absence of there being any application under Order 41 Rule 27 the documents filed with the stay application cannot be considered. 22. Apparently, the appellant at the trial stage since has failed to establish and prove the issue no. 2 pertaining to the mental disorder and consequently the cruelty, this Court feels that the appellant who was the plaintiff before the court below should have stood on its own legs to bring his plaint within the framework of Section 13 having fail to do so and having failed to establish the allegation by supporting the evidence the learned trial court had no option except to dismiss the Suit as Section 13 was not proved. 23. In the light of the above, this court feels that in the absence of evidence, the learned trial court has rightly held that the issues which were not proved by the appellant and has dismissed the appeal. 24. This Court feels that the appeal lacks merit and deserves to be dismissed and is hereby accordingly dismissed.