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2018 DIGILAW 991 (MP)

Aryansh Singh Bhadoria v. Anshika Singh

2018-11-30

J.K.MAHESHWARI, SUBODH ABHYANKAR

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JUDGMENT Abhyankar, J.--1. This first appeal has been filed by the appellant under section 19 of the Family Court Act, 1984 against the judgment dated 14.9.2017 passed by the First Additional Principal Judge, Family Court, Bhopal in Civil Suit No. 1223-A/2016, whereby the suit filed by the appellant-husband under section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short “Hindu Marriage Act”) has been dismissed. 2. In a nutshell, the case before the trial Court was that a suit under section 13(1)(ia) of the Hindu Marriage Act was filed by appellant Aryansh Singh Bhadoria of Bhopal at Family Court, Bhopal against his wife Anshika Singh, a resident of Raibareily (UP) on the ground that their marriage was solemnized on 14.2.2015 at Bhopal as per the Hindu rites, but could not be consummated on account of unwillingness on the part of the respondent-wife Smt. Anshika Singh to perform her part of the marital obligation i.e. have physical relations. It was further stated in the aforesaid application that the respondent-wife had an affair with her boyfriend and she was forced to solemnize the said marriage with the appellant by her family members. However, subsequently after the marriage she refused to have any physical relationship with the appellant and also informed the appellant that she had relationship with her boyfriend, which has continued. She finally left the house of the appellant on 20.5.2017 with her ‘stridhan’ and never came back. Thus it was contended by the appellant before the Family Court that the respondent wife resided with him for 17 days only after the marriage and there was no cohabitation/physical relationship between them. It is further stated that owing to irreconcilable differences between them right from day one of their marriage, they also decided to file a petition for divorce by mutual consent for which a seperate memorandum of understanding was also signed by both the parties which is placed on record. The respondent-wife had also given a letter to the Superintendent of Police, Bhopal to this effect, however, despite such mutual understanding, the respondent did not turn up for filing the application for divorce by mutual consent as provided under section 13(b) of the Act, 1955, and thus the appellant had no option except to file petition for divorce on the ground of irretrievable break down of the marriage and non-consummation of marriage. 3. 3. The appellant in support of his claim examined himself as PW1, also examined one family acquaintance Jagdish Ghote (PW2) and his uncle Rajesh Bhadoriya (PW3). The appellant in his deposition before the trial Court has narrated the aforesaid facts and also that there were no consummation of marriage between him and his wife. 4. It is submitted by the learned counsel for the appellant that in the aforesaid suit also, the respondent-wife, despite notice of the divorce petition has deliberately not marked her presence in Bhopal Court, and apparently she has not filed her written statement as also not cross examined the witnesses to rebut the case of the appellant. In such circumstances, despite there being clear pleadings and evidence in support thereof, the learned Judge of the trial Court has wrongly dismissed the divorce petition holding that the appellant has failed to prove his case. In support of his contentions, learned counsel for the appellant has relied upon the judgments of the Hon’ble apex Court in the case of Samar Ghose v. Jaya Ghose, reported in (2007) 4 SCC 511 and in the case of Sukhendu Das v. Rita Mukherjee, reported in (2017) 9 SCC 632 . 5. Heard the learned counsel for the appellant and perused the record. 6. From the record this Court finds that so far as the respondent’s non-appearance in the trial Court is concerned, the order sheets reveal that the respondent could not be served through normal mode hence a paper publication was made and the learned Judge of the trial Court on 24.4.2017 proceeded exparte against the respondent-wife this is probably because she is a resident of Uttar Pradesh and is not at all bothered about the marriage any more and has left it to the appellant only to contest the matter all by himself. The evidence was led by the appellant examining three witnesses including himself narrating all the aforesaid facts that there was no consummation of the marriage as the wife refused to have sexual relationship with him on the ground that she had an affair. The evidence was led by the appellant examining three witnesses including himself narrating all the aforesaid facts that there was no consummation of the marriage as the wife refused to have sexual relationship with him on the ground that she had an affair. The invitation card (Ex.P-1), marriage registration certificate (Ex.P-2) of their marriage have also been filed on record which disclose that their marriage was solemnized on 14.2.2015.The appellant has also proved the memorandum of mutual understanding (Ex.P-3) which is a notarized document executed on a stamp of Rs.100/-, which is complete in all respect for filing divorce petition under section 13-B of the Hindu Marriage Act, 1955. The divorce petition is also complete in all particulars including photographs and their signatures appended on each page, which gives an indication that there was an agreement between the parties to file petition for divorce by mutual consent. The respondent’s letter (Ex.P-5) to the Superintendent of Police, Bhopal is also placed on record, which also bears the seal of the Women Police Station, Bhopal dated 21.5.2018. None of these documents have been questioned by the respondent, as she was proceeded ex parte and the deposition of the appellant/plaintiff’s witnesses have also remained unchallenged. 7. In view of the aforesaid, in the considered opinion of this Court, the finding of the learned Judge of the trial Court that the respondent wife’s signatures on the aforesaid documents have not been verified does not bear any significant, as the evidence on record including the affidavit filed under Order 18 rule 4 of CPC by the appellant and his witnesses and the documents exhibited as aforesaid have remained unchallenged by the respondent. In the circumstances, the learned Judge of the trial Court has erred in dismissing the plaintiff’s suit for divorce, as in the considered opinion of this Court the ingredients of section 13(1)(ia) of the Act, 1955 have been pleaded and proved by the appellant. The relevant excerpts of section 13(1)(ia) of the Act are produced as under : “13.Divorce.--(1) Any marriage solemnised, 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— [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty]” 8. So far as cruelty in marriage is concerned, the apex Court, in the case of Parveen Mehta v. Inderjit Mehta [ (2002) 5 SCC 706 ], has held thus : “20. In the case in hand the foundation of the case of “cruelty” as a matrimonial offence is based on the allegations made by the husband that right from day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. When the husband offered to have the wife treated medically, she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in the presence of elderly persons like Shri S.K. Jain. This Court in the case of Dr N.G. Dastane v. S. Dastane observed : (SCC p. 346, para 56) “Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment.” 21. Cruelty for the purpose of section 13(1)( i-a ) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. 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 inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other. 22. Judged in the light of the principles discussed above, what we find is that right from the beginning the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of about six months; the respondent had been trying to persuade the appellant and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical test as advised by the doctor. After 21.6.987 she stayed away from the matrimonial home and the respondent was deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behaviour of the appellant. Further, the conduct of the appellant in approaching the police complaining against her husband and his parents and in not accepting the advice of the superior judicial officer Mr S.K. Jain and taking a false plea in the case that she had conceived but unfortunately there was miscarriage, are bound to cause a sense of mental depression in the respondent. The cumulative effect of all these on the mind of the respondent, in our considered view, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant. (Emphasis supplied) 9. In the case of Sukhendu Das (supra), although the case relates to Special Marriage Act, 1954 the conduct of the respondent in a matrimonial case has been taken note of in para 7 as under : “7. (Emphasis supplied) 9. In the case of Sukhendu Das (supra), although the case relates to Special Marriage Act, 1954 the conduct of the respondent in a matrimonial case has been taken note of in para 7 as under : “7. The respondent, who did not appear before the trial Court after filing of written statement, did not respond to the request made by the High Court for personal appearance. In spite of service of notice, the respondent did not show any interest to appear in this Court also. This conduct of the respondent by itself would indicate that she is not interested in living with the appellant. Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty (Samar Ghosh v. Jaya Ghose). The High Court ob-served that no attempt was made by either of the parties to be posted at the same place. Without entering into the disputed facts of the case, we are of the opinion that there is no likelihood of the appellant and the respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage.” (Emphasis supplied) 10. Thus, applying the aforesaid dictum to the facts of the present case, it is apparent that the respondent has not shown any interest in having any relationship with the appellant let alone entering into sexual relationship. Thus, this Court has no hesitation to hold that the appellant has made out a case of cruelty. It is further observed that the respondent also agreed to file a petition for divorce by mutual consent and did not turn up to file the same, there appears to be no communication by the respondent with the appellant after she left him on 20.5.2017. There is no rebuttal of the divorce application nor there is any cross examination of the appellant and the other witnesses suggesting contrary to what is pleaded by the appellant, thus even if the signatures of the respondent have not been proved by the appellant through any handwriting expert or otherwise, it cannot be the sole ground to dismiss the case of the appellant in the light of the other material available on record. In the considered opinion of this Court, it would not be proper to keep the appellant stranded in his marital life with his estranged wife especially when the respondent-wife is not at all interested even in contesting the matter. 11. In the result, the first appeal filed by the appellant stands allowed and the impugned judgment dated 14.9.2017 passed by the First Additional Principal Judge, Family Court, Bhopal in Civil Suit No.1223-A/2016 is hereby set aside. A decree for divorce under section 13(1)(ia) of the Hindu Marriage Act, 1955 be drawn by the Registry accordingly.