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2018 DIGILAW 2189 (ALL)

Swati Chaudhary v. Major Sumit Bana

2018-10-12

PANKAJ MITHAL, RAJIV JOSHI

body2018
JUDGMENT : 1. The wife Smt. Swati Chaudhary has preferred this appeal under Section 19 of the Family Courts Act, 1984 against the judgment, order and decree of divorce dated 7.9.2016 passed by the Principal Judge, Family Court, Allahabad in Marriage Suit No. 1118 of 2011 instituted by the respondent husband Major Sumit Bana for dissolution of their marriage. 2. The parties to the appeal were married on 25.6.2004 at Meerut. The husband was a Captain in the Indian Army who was posted at Pune at the relevant time. The wife was non working but with a degree of M.Sc. The parents of the husband were residing at Ghaziabad whereas that of the wife at Lucknow. 3. The respondent husband instituted the aforesaid suit for dissolution of marriage on the ground of cruelty and desertion. 4. The respondent husband contended that the appellant wife from the very beginning was not interested in discharging her marital obligations and that her behaviour was non co-operative. She had accompanied him to Pune in June 2004 and remained there with him till August 2004. Thereafter, he was posted at Sikundarabad in December 2004 and the appellant wife stayed with him in Sikundarabad between March to May 2005. He was thereafter transferred to Fazilika in Punjab in January 2007 where he was posted till October 2009. During this period he had to undergo a training in Mau in Indore from 14.1.2008 to 8.3.2008. The appellant wife left the house at Indore on 3.3.2008 without any information to him leaving the house in an open state. The respondent husband also alleges that once on his birthday he invited his friends for dinner at home but appellant wife refused to make any arrangements and her behaviour on the said date infront of the friends was so pathetic that it caused so much of embarrassment to him that he went into a state of shock for several days. 5. The appellant wife used to take anti conception pills without his consent or information and she failed to disclose about her conceivement which ultimately resulted in abortion. 5. The appellant wife used to take anti conception pills without his consent or information and she failed to disclose about her conceivement which ultimately resulted in abortion. He needed a joint photograph for the purposes of the army records and for that purpose he had gone to Lucknow where the appellant wife was staying with her parents and got a joint photograph taken out at the Studio but the father of the appellant wife came shouting and snatched the photographs, tore them and took away the negatives. Even the behaviour of the father of the appellant wife was not good towards him and his family members. Whenever any one from his side visited them for negotiating and settling the matter he was rude enough with them and did not even open the doors and allowed them inside. At times he turned them out saying that his daughter would not go with them. 6. The appellant wife had denied all the above allegations by filing a written statement. She has alleged that the parents and sisters of the husband were not satisfied with the dowry. Her father had spent more than 10 lakhs in the marriage. She never denied to live together or to accompany her husband to Sikundarabad but he himself forcibly sent her to Lucknow. She got admission in B.Ed. at a post graduate college in Ghaziabad while staying with the parents of her husband. She never denied for a photograph with the husband and that her father never snatched any photograph and took away the negatives as alleged. Her husband himself wants to get rid of her. 7. The Family Court formulated the following three issues for adjudication in the case:- (i) Whether the wife had behaved with cruelty as alleged and if so, its effect; (ii) Whether the wife had deserted the husband without any justifiable cause w.e.f. 3.3.2008 and if so, its effect; and lastly, (iii) the relief to which the husband is entitled, if any. 8. In evidence the respondent husband Sumit Bana submitted his own affidavit in examination in chief as PW-1 that of Moti Lal Nehra as PW-2 and Jaikaran Siwal as PW3 all of whom were duly cross examined. 9. The appellant wife in defence filed her own affidavit as DW-1 and she was also cross examined. 10. 8. In evidence the respondent husband Sumit Bana submitted his own affidavit in examination in chief as PW-1 that of Moti Lal Nehra as PW-2 and Jaikaran Siwal as PW3 all of whom were duly cross examined. 9. The appellant wife in defence filed her own affidavit as DW-1 and she was also cross examined. 10. Apart from the above, some documentary evidence was also adduced by the parties which is not of much relevance. 11. The Family Court made efforts to get the matter between the two reconciled but ultimately it was found that reconciliation is not possible and that the parties can not live together. This is recorded in the order sheet of 3.5.2013. The family Court has recorded that the re-union between the parties is not possible. 12. The court of first instance thereafter proceeded on merits and on consideration of the entire evidence while deciding the first two issues together held that the appellant wife had behaved with cruelty with the respondent husband and that she is living separately for the last two years without any proper excuse. Accordingly, the respondent husband is entitled for dissolution of marriage under Section 13 (1) (i-a) and (i-b) of the Hindu Marriage Act, 1955. Thus, the suit was decreed for the divorce. 13. In appeal, both the parties were summoned vide order dated 4.10.2016 and they have appeared before the court on 6.10.2016. The Court interacted with them for more than 1 and ½ hours individually as well as jointly in Chambers and some more time was granted to them to further reconsider the matter with the expectation that they will stay together on the week ends. However, the matter could not be reconciled. 14. The Court thereafter vide order dated 20.9.2017 referred the matter to the Mediation Center attached to the High Court and it appears that as the mediation could not take place, the Court opined to consider the matter on merits and directed the parties to file paper books. Even after the filing of the paper books, the Court summoned both the parties. They appeared at the time of hearing on 24.4.2018 but they refused to live together or to reconcile. 15. In the above circumstances, we were left with no option but to hear the counsel for the parties on merits. 16. Even after the filing of the paper books, the Court summoned both the parties. They appeared at the time of hearing on 24.4.2018 but they refused to live together or to reconcile. 15. In the above circumstances, we were left with no option but to hear the counsel for the parties on merits. 16. Sri N.C. Rajvanshi, Senior counsel had appeared for the appellant wife and Sri A.N. Bhargawa, learned counsel for the respondent husband. 17. Sri Rajvanshi vehemently submitted that it is not a case of cruelty and desertion but only that of routine differences between husband and wife which are not sufficient enough to dissolve the marriage. He placed reliance upon some decisions to support his contention to establish as to what actually would be cruelty for the purposes of dissolving the marriage. 18. Sri Bhargawa on the other hand emphasized that there is no ground in appeal on which the decree of divorce granted by the court below can be set aside. None of the findings returned on the point of desertion and cruelty are in any way illegal or incorrect. 19. In the case at hand the Court is only concerned as to whether either of the two grounds of desertion or cruelty have been established so as to maintain the decree of dissolution of marriage between the parties. 20. Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) lays down the various grounds for passing a decree of divorce. Clause i (a) and i (b) of Sub-section 1 of Section 13 provides for cruelty and desertion as the two grounds for the decree of dissolution of marriage. They read as under:- "13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i)........... i (a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or i (b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition (ii) ............. (iii).............. i (a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or i (b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition (ii) ............. (iii).............. Explanation:-In this clause,- (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medial treatment;" 21. The case of desertion would be made out if either of the parties deserts the other party for a continuous period of not less than two years immediately preceding the presentation of the divorce petition. In other words, two years of continuous separate living of the spouse for no reasonable cause would amount to desertion. 22. The appellant and the respondent were married on 25.6.2004. They are living separately from 3.3.2008. The divorce petition was presented in 2011. Thus, living of the parties separately for a continuous period of two years preceding the filing of the divorce petition is clearly established and is not even in dispute. 23. The only question therefore is whether the separate living of the parties in the present case would constitute desertion within the meaning of Sub-clause i(b) of Sub-section 1 of Section 13 of the Act. 24. A combined reading of clause i (b) of Sub-section 1 of Section 13 and the explanation attached to it would reveal that to constitute desertion the following four elements must exists:- (i) separation between the parties for a continuous period of two years before filing of the divorce petition; (ii) intention to bring cohabitation permanently to an end; (iii) the separate living is without the consent of the other spouse; and (iv) such separate living is without any reasonable cause. 25. The respondent has alleged that the appellant had left the marital house at Indore on 3.3.2008 without informing him and had gone to NOIDA to her brother. She has not returned thereafter. He had made efforts to bring her back but all his efforts have failed. 26. 25. The respondent has alleged that the appellant had left the marital house at Indore on 3.3.2008 without informing him and had gone to NOIDA to her brother. She has not returned thereafter. He had made efforts to bring her back but all his efforts have failed. 26. It has come in the evidence of the respondent as PW-1 that after the appellant had left the house at Indore on 3.3.2008, he along with his mother and father had visited the house of the brother of the appellant at NOIDA where she misbehaved with them and refused to accompany them. He also stated that his mother-in-law died on 25.1.2009 at Lucknow. He had gone to Lucknow with his parents on the aforesaid occasion and while returning requested the appellant to return with them but there was no response. Even in August 2009 he had gone to Lucknow but the father of the appellant misbehaved with him and turned him out of the house stating that she will not go and live with him any more. Thereafter, he and his parents on phone had requested her to return but every time she misbehaved even on phone. PW-2 Moti Lal Nehra also stated that the appellant had left the house of the respondent on 3rd March 2008 while he was on a training course at Mau in Indore. She had left the house leaving it open without intimating the respondent. He had accompanied the respondent to Lucknow in August 2009 so as to settle the matter but the father of the appellant instead of listening anything misbehaved with them and refused to send her daughter saying that she does not want to keep any relation with the respondent any more. A similar incident took place in January 2010 when he had again gone to the house of the parent of the appellant in Lucknow. PW-3 Jai Karan Singh reiterated that the appellant had left the house of the respondent on 3.3.2008 without intimating him and without his consent and she has not returned despite all efforts by relatives and friends to persuade her to reunite, rather the father of the appellant always misbehaved with the mediators and even abused them with the categorical assertion that neither he nor his daughter wants to keep any relations with the respondent. 27. 27. In rebuttal to the above evidence, the only evidence is that of the appellant as DW-1. She stated that she had gone to Mau, Indore at the new place of posting of the respondent but while she stayed there she realized that the behaviour of the respondent was not good and he intended to get rid of the appellant. Therefore, she left the house on 3.3.2018. It is however wrong to allege that she left the house in the absence of the respondent. She also stated that the respondent had never come to her house in August 2009 but accepts that he had come on the death of her mother along with his parents and had stayed in her parents house at Lucknow. 28. Apart from the above, there is no other evidence which may throw any light on the separation of the parties or to prove that there is any reasonable cause for them to live separately. 29. It may be pertinent to mention here that according to appellant she is M.Sc., and B.Ed. She has stated that she passed M.Sc., in 2002 and B.Ed in 2007. She got admission in B.Ed, at Ghaziabad while living with her in-laws from where she shifted to his brother's place at NOIDA and completed her B.Ed, in 2007. She has done B.Ed with the consent of the respondent. She did her BTC training between March 2009 to October 2009 at Barabanki while living at Lucknow. 30. There is no evidence that the respondent used to ill treat her and had made her living with him impossible except for a bald allegation that he used to drink and his behaviour indicated that he wanted to get rid of her. 31. In view of the above evidence, it is established that the appellant had left the house and the company of the respondent without his consent in 2008. She had been living separately from him without any reasonable cause and has refused to return to re-start their married life afresh despite efforts of the respondent to reunite. There is no evidence to establish that she ever made any attempt to live with her husband after leaving him in 2008. She had been living separately from him without any reasonable cause and has refused to return to re-start their married life afresh despite efforts of the respondent to reunite. There is no evidence to establish that she ever made any attempt to live with her husband after leaving him in 2008. The intention of the appellant to end the cohibition permanently is also established from the statement of PW-1, PW-2 and PW-3 all of whom stated that the father of the appellant categorically stated that the tie with the two has broken permanently and that her daughter will not go & live with the respondent any more. In this way, all the four essential elements necessary for constituting the desertion stand duly proved and we find no error or illegality on part of the court below in recording a finding of desertion on part of the appellant. Moreover, on behalf of the appellant no material evidence has been pointed out which would otherwise lead us to a different conclusion or to set aside the findings of desertion as recorded by the court below. 32. In Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi AIR 2002 SC 88 the Apex Court was dealing with a matter of divorce on the ground of desertion by wife. In the said case the wife had gone to her parents house for the birth of child but did not return thereafter. She kept on imposing conditions for her return and one of them being that the husband should live in a separate house from his parents. It was held that the husband has satisfactorily proved that the wife is guilty of deserting him. 33. It was held that it is difficult to give any comprehensive definition of 'desertion' in the context of matrimonial law but the factum of separation with the intention of bringing the cohabitation to an end would constitute desertion. 34. It was held that the husband has satisfactorily proved that the wife is guilty of deserting him. 33. It was held that it is difficult to give any comprehensive definition of 'desertion' in the context of matrimonial law but the factum of separation with the intention of bringing the cohabitation to an end would constitute desertion. 34. In the present case the appellant wife has herself left the house of her husband and is living separately for a continuous period of two years and more and the very fact that she is teaching and working at Brabanki near Lucknow coupled with the fact that her father had repeatedly stated that she would not live with the respondent and that all relationship has come to an end clearly establishes that her intention in living separately is to permanently end the cohabitation. Thus, desertion on part of the appellant stands sufficiently proved. 35. The court below has also held the appellant to be guilty of cruelty as well. In this regard several instances can be referred to. 36. The first, being that she refused to discharge her marital obligations; the second being that on 14.10.2015 on the birth day of the respondent she not only refused to make the arrangements for a small party for the friends of the respondent at the house but also misbehaved with him infornt of his friends; the third being leaving the house without the consent of the respondent and without any intimation to him; fourthly taking contraceptive pills and getting her pregnancy aborted without consulting the respondent; and fifthly misbehaving with the respondent, his parents and other relatives whenever they visited her parents house for the purposes of reconciliation; and lastly insulting him by allowing her father to snatch the photographs and the negatives from his hands at Studio at Lucknow. 37. In regard to all the above instances, there is evidence on Oath only from the side of the respondent but the evidence of the appellant in rebuttal is not very specific rather the denial of the evidence of the respondent by her is vague. The father of the appellant had avoided the witness box and has not come forward to even deny the allegation made against him in reference to the incidents of alleged cruelty. The father of the appellant had avoided the witness box and has not come forward to even deny the allegation made against him in reference to the incidents of alleged cruelty. There is no evidence so clinching so as to permit us to reverse the finding on the ground of cruelty as recorded by the trial court. 38. The submission that the instances of cruelty as alleged are the out come of the routine wear and tear of the matrimonial life and are not sufficient for a decree of divorce may be a little attractive but has no substance in the facts and circumstances of the case. 39. It is settled in law that for the purposes of dissolution of marriage cruelty can be physical as well as mental. In this case we are only concerned with the mental cruelty. The mental cruelty can be caused if one spouse treats the other in such a manner that it hurts the feelings of the other spouse and cause a reasonable apprehension in the mind of the said spouse that it is not possible for them to live together or it is harmful and injurious to reside together. 40. In Samar Ghosh Vs. Jaya Ghosh 2007 (5) SCC 511 the Court has laid down a list of incidences which can be treated as mental cruelty though the said list is not an exhaustive list. The said list includes the state of deep anguish, disappointment, frustration in the mind of one spouse caused by the conduct of the other for a long time; humiliating treatment making the life of the other spouse miserable; sustained unjustified conduct and behaviour of one spouse affecting the mental and physical health of the other spouse and continuous separation making the matrimonial bond beyond repair. 41. It is well recognized in law that for setting aside any findings of the court below it has to be proved that the findings so arrived are perverse which are based upon in admissible evidence or has been recorded on evidence which was not admissible or is such which can not be arrived at in any manner or has been recorded in ignorance of the material evidence on record. None of the grounds exist to enable this Court to set aside either of the findings of cruelty or desertion as returned by the court below. None of the grounds exist to enable this Court to set aside either of the findings of cruelty or desertion as returned by the court below. Therefore the findings as recorded by the court below on both the issues are neither incorrect on fact nor in law. 42. It is also settled that in appeal the burden is upon the appellant to establish some good reason for setting aside the judgment and order of the court below. In Chandra Pal Vs. Roop Ram (1979) ALJ 55 it has been laid down that the burden is on the appellant to establish that the judgment of the lower court on facts and law is not proper and incorrect. In Ram Bhajan and another Vs. Abdul Rahman and others AIR (1997) All 17 it has been held that there must be some balance in favour of the appellant to justify alteration in the judgment and order of the trial court. 43. We do not find that the appellant has been able to discharge the above burden so as to establish that the findings of the Family Court on the issue of desertion and cruelty are improper, illegal and are incorrect which may require to be disturbed in appeal. 44. Thus in view of the facts and circumstances and the evidence already discussed, the conduct and behaviour of the appellant if held to be an act of cruelty by the court, the conclusion thereof can not be faulted with or said to be suffering from any error of law which may require to be reversed in appeal. 45. In addition to the above conscious of the fact, that irretrievable break down of marriage may not be a ground for divorce under the Act but as the Apex court has recognized it to be a weighty circumstance for severe-ness of marital tie, in the facts and circumstance of this case including the evidence on record and the fact that all efforts of the courts both at the trial and in appeal to reconcile and mediate have failed, we are of the opinion that the marriage between the parties has been damaged beyond repair and with the passage of time and the long separation the parties can not be reunited. 46. 46. Accordingly it is held that the marriage has broken down irretrievably and the court is left with no option but to stand by the dissolution of the marriage in the interest of both the parties. 47. Thus, following the principle of live and let live we are of the opinion that a decent burial is necessary to be given to this marriage and the decree of divorce as passed by the family Court has to be upheld. 48. The appellant has neither applied for permanent alimony nor the court below has ordered for payment of any alimony. 49. Section 25 of the Act mandates that the Court exercising the jurisdiction under the Act at the time of passing any decree or even subsequent thereto on application by either of the parties for maintenance may direct for payment of maintenance depending upon the income, status and property of the parties which may be just and reasonable for maintenance of the party claiming it. 50. In view of the above, even though the appellant has not applied for any alimony, in the facts and circumstances looking to the fact that the respondent is an officer in the Indian Army and that the appellant is also a teacher and earning sufficient for her bare maintenance, the Court directs that the interest of justice would be sub-served if the respondent pays a lump sum permanent alimony of Rs. 15 lakhs to the appellant within a period of three months subject to any other decision that may be taken by the family court, if any application for permanent alimony is moved by the appellant hereinafter. The appeal lacks merit and is accordingly dismissed with the above direction.