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2018 DIGILAW 71 (ORI)

Sujata Mohanty v. Rudra Charan Mohanty

2018-01-12

BISWAJIT MOHANTY, INDRAJIT MAHANTY

body2018
JUDGMENT : BISWAJIT MOHANTY, J. 1. The respondent’s application under Section 13 of the Hindu Marriage Act, 1955 praying for decree of divorce having been allowed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 792 of 2004, the appellant has filed the present appeal. 2. The case of the respondent, who was the petitioner before the learned Judge, Family Court, Cuttack in the above noted Civil Proceeding is that he married the appellant on 30.01.2001 at the appellant’s residence at Banei. Prior to marriage, the appellant was serving as an Assistant Teacher at Town U.P. School in Banei. After solemnisation of marriage, both the parties lived as husband and wife and later, the appellant left for her service place at Banei. After some months of marriage, the appellant instigated the respondent to come and live at Banei permanently to which the respondent refused as he belonged to a joint family consisting of the elder brothers, their wives, children and his widow mother. During School Vacation and Holidays, the appellant-wife never came to Athagarh and on the eve of each such Vacation, the appellant-wife used to phone to respondent-husband to come to Banei. In such background, with much reluctance, the respondent used to go to Banei and when there he tried to bring her (appellant) to Athagarh, she (appellant) used to pick up quarrel and become furious. In one or two occasions when the appellant-wife came to reside Athagarh she never did any household work and never took care of her old widow mother-in-law. When the respondent suggested the appellant to do household work, the appellant quarrelled with family members of the respondent. Though the appellant was provided treatment for ovary infection, but she avoided taking any medicine as she was not willing to become a mother. The appellant visited Athagarh last in 2003 in Dasahara vacation when her mother-in-law was to undergo the eye operation at Cuttack. When the respondent-husband proposed the appellant-wife to attend her mother-in-law at Cuttack, she turned down the said proposal. Thus, since Dasahara festival 2003, the respondent had no sexual relationship with the appellant. Despite invitation by the sister and brother-in-law of the appellant at Banei to attend their daughter’s marriage, she did not attend the marriage function held in July, 2004. She refused the invitation by saying that she would not go to Athagarh in her life time. Thus, since Dasahara festival 2003, the respondent had no sexual relationship with the appellant. Despite invitation by the sister and brother-in-law of the appellant at Banei to attend their daughter’s marriage, she did not attend the marriage function held in July, 2004. She refused the invitation by saying that she would not go to Athagarh in her life time. On 12.12.2004, the old widow mother of the respondent went to Banei to bring her to Athagarh for X-mas vacation but the appellant misbehaved with her saying that she would not return to Athagarh as she was not dependant on them. On account of all these, the respondent along with his family members suffered enormous mental pain and agony. According to the appellant, all these constituted the mental cruelty inflicted on him by the appellant and as such, it was not possible to live with her and lead a conjugal life. 3. The appellant contested the case by filing the written statement. The case of the appellant is that marriage was solemnised on 30.1.2001 at Banei. Before marriage, it was duly informed to the respondent and his family members that she was serving as a teacher at Banei. It was initially decided that the respondent would make efforts to transfer the appellant to any school in Athagarh so that she could live at Athagarh permanently. As per the demand of appellant, his uncle and brother and her father was forced to give items indicated in Schedule-A of the written statement. Though after marriage after staying for sometime at Athagarh, she returned to Banei, however, she was regularly going to Athagarh in each short/long vacation and sometime also by taking leave. She never compelled the respondent to stay with her at Banei. She never quarrelled with the respondent. She was frequently coming to Athagarh and taking all care of her mother-in- law and doing household work. She also used to serve foods to all the family members of the respondent whenever it was required and she was never adament at any time. She was taking proper medicine as per the advice of the doctor and never neglected it. The case of the abortion was an unfortunate incident and beyond the control of the appellant. She never avoided any treatment and it is not correct to say that she did not want to be a mother. She was taking proper medicine as per the advice of the doctor and never neglected it. The case of the abortion was an unfortunate incident and beyond the control of the appellant. She never avoided any treatment and it is not correct to say that she did not want to be a mother. It is incorrect to say that the appellant last visited Athagarh in Dasahara in 2003. In fact she attended the eye operation of her mother-in-law and she never neglected her. She also denied the allegation that since Dasahara 2003, there has not been any sexual relationship between her and her husband. With regard to the marriage function of the niece of the respondent in July, 2004, her stand was during entire Summer Vacation of 2004, she stayed at Athagarh but after reopening of the school she could not get leave from the school for which she was not able to attend the above noted marriage function. The respondent’s sister and brother-in-law had never come to Banei personally to invite her for the above noted marriage. She never instigated him nor humiliated him nor any of his family members. Her mother-in-law had never gone to Banei on 19.12.2004 to bring her to Athagarh. She has never threatned the respondent or his family members to prosecute them if the respondent failed to join her at Banei. She never misbehaved with respondent a caused mental agony to him. 4. In order to prove his case, the respondent examined three witnesses. He examined himself as PW-1, his elder brother as PW-2 and his neighbour, Manorama Pattnaik as PW-3. The appellant examined two witnesses. She examined herself as OPW-1 and her brother as OPW-2. Though the respondent prayed for a decree for divorce being passed in his favour on the ground of cruelty and desertion, however, the learned court below clearly came to a finding that since the desertion by appellant as alleged by the respondent as per his evidence as PW-1 starts from 2003 and since the civil proceeding was filed by the respondent on 22.12.2004, the intervening period fell short of two years as required under Section 13 (i-b) of the Hindu Marriage Act, 1955. Further on analysis of evidence, the learned Judge, Family Court, Cuttack came to hold that the evidence adduced on behalf of the respondent clearly proves that he was subjected to cruelty by the appellant. Further on analysis of evidence, the learned Judge, Family Court, Cuttack came to hold that the evidence adduced on behalf of the respondent clearly proves that he was subjected to cruelty by the appellant. On the basis of these findings, the civil proceeding was allowed and the marriage solemnised between the parties on 30.1.2001 was directed to be dissolved by a decree of divorce. The respondent was further directed to pay Rs. 1.00 lakh as permanent alimony to the appellant within a period of three months from the date of the judgment/order. 5. Learned counsel for the appellant assailed the judgment by submitting that such judgment has been pronounced by making a wrong approach in analysing the evidence on record. Instead of analysing the evidence of the respondent for finding out as to whether he has discharged the burden of proving mental cruelty as alleged by him, the learned court below has mainly analysed the evidence of the appellant as if burden was on the appellant to prove the case of the respondent. According to him, the learned court below ought to have scrutinised the pleadings and evidence of respondent to find out whether he has been able to make out a case of mental cruelty against the appellant or not. The learned court below did not do this in the present case. Secondly, he submitted that the findings of the learned court below that the respondent was deprived of sexual relationship is based on no material. Thirdly, he submitted that the plea of cruelty has not at all been established from the evidence on record. Thus, the learned court below has gone wrong in allowing the civil proceeding in favour of the respondent and granting him a decree of divorce. According to him, there is no evidence on record to show that the appellant had by her own conduct inflicted mental cruelty on the respondent. Lastly, he submitted that the evidence of appellant has not been considered by the learned court below in proper prospective. For all these, he contended that the impugned judgment, order and decree resulting in dissolution of marriage be set aside and resultantly Civil Proceeding No. 792 of 2004 filed by the respondent for divorce be dismissed. 6. Mr. Lastly, he submitted that the evidence of appellant has not been considered by the learned court below in proper prospective. For all these, he contended that the impugned judgment, order and decree resulting in dissolution of marriage be set aside and resultantly Civil Proceeding No. 792 of 2004 filed by the respondent for divorce be dismissed. 6. Mr. Sidhartha Misra, learned counsel on behalf of the respondent stoutly defended the impugned judgment and submitted that the learned Judge, Family Court, Cuttack has committed no illegality in passing the impugned judgment which has resulted in dissolution of marriage between the respondent and the husband as the respondent has succeeded in proving mental cruelty inflicted by the appellant on her husband. He further submitted that pursuant to order passed by this Court on 10.9.2014, the appellant was handed over Bank Draft No. 059403 dated 21.10.2014 for an amount of Rs. 1.00 lakh and this Court permitted the appellant to get the same encashed. He also submitted that pursuant to order dated 6.5.2016, the respondent had tendered a Bank Draft No. 866231 dated 8.7.2016 drawn on State Bank of India, Athagarh Branch for an amount of Rs. 2.00 lakh in the Court and the said draft has been kept in sealed cover in the custody of the Registrar (Judicial) of this Court as per the order dated 11.7.2016. 7. Before proceeding further, we have to understand the concept of mental cruelty. In the case of V. Bhagat vs. D. Bhagat, AIR 1994 SC 710 , the Supreme Court has held that mental cruelty can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it impossible for that party to live with the other. To put it differently, the 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 was further held that while arriving at such conclusion, that 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. It was further held that while arriving at such conclusion, that 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. What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each case keeping in view the facts and circumstances of that case. That apart, the accusations and allegations have to be scrutinised in the context in which they are made. 8. In Praveen Mehta vs. Inderjit Mehta, AIR 2002 SC 2582 , it has been observed that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment, and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The interference has to be drawn from the attending facts and circumstances taken cumulatively. 9. In Samar Ghose vs. Jaya Ghosh, (2007) 4 SCC 511 , the Supreme Court has made it clear that the concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious belief, human values, and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances. 10. In such background, let us scrutinise the evidence on record. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances. 10. In such background, let us scrutinise the evidence on record. The respondent as PW-1 has reiterated most of his contentions in examination-in-chief and at Para 21 of his cross- examination. However, in Para-21, he has admitted that after the marriage and till filing of civil proceeding while the appellant had come to Athagarh for 3-4 times, he has visited her for 20-25 times. As indicated earlier, the respondent filed C.P. No. 792 of 2004 before the learned Judge, Family Court, Cuttack on 22.12.2014. So, this shows that till filing of the case, he was in visiting terms with her. In such background, his evidence to the effect that since December, 2003, he had no sexual relationship with the appellant is not believable. Further, neither in the pleadings of respondent nor in his evidence, there is anyting to show that the appellant had refused to have sexual relationship despite the request of the respondent. The testimony of respondent is only to the effect that he has no sexual relationship with the appellant since 2003 Dasahara vacation and not that the appellant has refused his request for sexual union since 2003. If it had come out in the evidence that the appellant had refused the sexual advance of respondent certainly it would have constituted a grave instance of mental cruelty but the same is not the case here. Further in their evidence, the respondent, PW-2 and PW-3 have stated that the appellant never used to come in vacations to Athagarh and he had to go to Banei and when he tried to bring her to Athagarh, she picked up quarrel. However, PW-2 who happens to be the elder brother of the respondent in his cross-examination at para-16 has candidly admitted that the appellant was coming to her in-laws house on holidays and with regard to the appellant picking up quarrel at Banei, none from Banei has been examined by the respondent to corroborate his version. However, PW-2 who happens to be the elder brother of the respondent in his cross-examination at para-16 has candidly admitted that the appellant was coming to her in-laws house on holidays and with regard to the appellant picking up quarrel at Banei, none from Banei has been examined by the respondent to corroborate his version. Though both the brothers, namely, respondent, PW-2 and PW-3 have stated that the appellant has visited their house at Athagarh only 2-3 occasions, however, such a thing cannot be believed as PW-2 in his cross-examination has admitted that the appellant was coming to their house in holidays. Furthermore, PW-1 in his cross-examination has stated that he had come to Cuttack with the appellant six times for her treatment. In such background, the earlier testimony of the respondent as well as the elder brother (PW-2) that the appellant visited Athagarh only 2-3 times after her marriage cannot be believed. It cannot be believed that the appellant had accompanied the respondent to Cuttack for her treatment six times without visting their matrimonial home at Athagarh. Though the respondent has stated in his examination-in-chief that the appellant never thinks of his old mother-in-law nor does any household work on the occasions she visited Athagarh; PW-2, the elder brother of the respondent except making general statement that the appellant never discharged his duty of a house wife has not corroborated the above testimony of the respondent in material particulars. With regard to pleading of the respondent that the appellant never served foods to the family members and threw away cooking apparatus at Atahagarh, the same cannot be believed as the same has not been testified by the appellant nor corroborated by PW-2. The only statement that has been made by PW-2 as indicated earlier is a general statement that the appellant has never discharged the duty of a house wife at Athagarh. Similarly, the testimony of the respondent that the appellant knowingly avoided to take medicine as she did not want to become mother cannot be accepted as the same has not been corroborated either by PW-2 or PW-3, who claims to be a close family members of the appellant and respondent. Similarly, the testimony of the respondent that the appellant knowingly avoided to take medicine as she did not want to become mother cannot be accepted as the same has not been corroborated either by PW-2 or PW-3, who claims to be a close family members of the appellant and respondent. With regard to testimony of the respondent that the appellant did not come to attend the eye operation of mother-in-law at Cuttack such testimony on the respondent is vague as neither the date of such operation has been proved nor the doctor conducting operation has been examined. Further, the testimony of the respondent in this regard that she has attended the eye operation of the mother-in-law at Cuttack has remained un-demolished. Though the respondent in his examination-in-chief has stated that his sister and brother had been to Athagarh to invite the appellant to attend the marriage of the niece of respondent which was scheduled to be held during July, 2004 and that the appellant had refused to attend the same saying that she would never go to Athagarh in her life time, however, in the cross-examination the respondent has candidly admitted that his sister and brother-in-law are not going to prove these aspect of the matter. Thus, this throws a cloud on the version of the respondent. Further, while in examination- in-chief at para-14, the respondent as PW-1 testified that while on 19.12.2004 his old mother had gone to Banei to bring appellant to Athagarh on the eve of ensured X-mas vacation and she was ill-treated by appellant, however, in cross-examination the respondent has stated that on 19.12.2004 he along with his mother had gone to Banei to bring the appellant. Strangely, mother of the respondent has not been examined in this case to throw light on this aspect of evidence. Moreover, testimony in this regard of appellant relating to non-visit of her mother-in-law on 19.12.2004 remains un-demolished. Though PW-1 in his testimony has stated that during the stay the appellant at Athagarh when he suggested to do the household work she became violent and picked up quarrel with the family members, however, PW-3 who claims to be the close to the family of the respondent in her cross-examination has admitted that she has never seen the parties quarreling with each other. It may be noted here that PW-3 is a neighbour of the respondent at Athagarh. 11. It may be noted here that PW-3 is a neighbour of the respondent at Athagarh. 11. All these analysis would show that most of the allegations made by the respondent as discussed above have not been corroborated and proved. Rather, his allegations relating to appellant never coming on vacation and picking up quarrel at Athagarh having been directly contradicted by PWs. 2 and 3 respectively in their cross-examination. Only the evidence led by the respondent that the appellant instigated him to come to Banei has been corroborated by PWs. 2 and 3. But denial of such instigation by the appellant in her evidence has not been demolished in her cross-examination. Similarly, the evidence of OPW-2 that the appellant never compelled the respondent to stay at Banei has remained un-demolished in the cross-examination. Though in her written statement the appellant has stated that she was staying at Athagarh, however, in her testimony she has explained that after marriage, they lived haply together as husband and wife at Athagrh and after one month she had to return to Banei. Obviously she was to return to Banei to join her services. Further, the evidence of appellant that she was taking the care of mother-in-law while visiting Athagarh and used to serve foods of the family members and was taking proper medicine as advised by the doctor have remained un-demolished in the cross-examination. In her testimony, she has clearly stated that the case of her abortion was an unfortunate incident beyond her control and it was not correct that she did not want to be a mother. For all these reasons, particularly since the respondent has not been able to prove majority of the allegations made by him with cogent evidence, we are inclined to hold that the allegations of mental cruelty have not been proved. There is nothing to show that the conduct of the appellant was of such intensity and gravity so as to bring it within the parameters on mental cruelty. 12. Further, in our view the learned court below while analysing the evidence has made a wrong approach by mainly the analysing the evidence of appellant as if the burden of proving mental cruelty was on the appellant. The learned Judge, Family Court, Cuttack ought to have analysed the evidence of respondent in details as it was he who has moved the court with a prayer for decree of divorce. The learned Judge, Family Court, Cuttack ought to have analysed the evidence of respondent in details as it was he who has moved the court with a prayer for decree of divorce. So the burden was clearly on the respondent to prove his case. A perusal of the judgment under challenge reveals that the allegations made by the respondent have been accepted at para-6 of the impugned judgment without critically dissecting the evidence led by him. On account of these, the learned court below has lost sight of the impact of testimony of PW-2 where he has clearly admitted that the appellant was coming to her in-laws house on holidays and the testimony of PW-3, a neighbour of respondent who has stated that she has never seen the parties quarrelling with each other. The learned court below has also lost sight of many contradictions as discussed earlier in the evidence of PWs. 1, 2 and 3. Thus, on a cumulative analysis of the entire evidence it is clear that the mental cruelty that is required to be proved by the respondent was never proved by him. 13. Keeping in mind such discussions, we are of the considered opinion that the learned court below has gone wrong in allowing the prayer of the respondent for dissolution of marriage. Accordingly, we allow the present appeal and set aside the impugned judgment and order dated 6.8.2010 passed by the learned Judge, Family Court, Cuttack in C.P. No. 792 of 2004 and dismiss the said Civil Proceeding. 14. Since we are allowing the appeal, we direct the Registrar (Judicial) of this Court to return the Bank Draft No. 866231 dated 8.7.2016 drawn on State Bank of India, Athagarh Branch for an amount of Rs. 2.00 lakhs to the respondent.