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2019 DIGILAW 426 (UTT)

Raghuveer Kaintura v. Meera Kaintura

2019-08-07

NARAYAN SINGH DHANIK, SUDHANSHU DHULIA

body2019
JUDGMENT : Narayan Singh Dhanik, J. Both the above-titled appeals have been preferred against the judgment and order dated 16.9.2013 passed by the Principal Judge, Family Court, Dehradun, whereby the suit of the plaintiff/appellant (husband) for divorce under Section 13 of the Hindu Marriage Act, 1955 has been dismissed and the counter-claim of the defendant/respondent (wife) for right of residence has been decreed. First Appeal No. 140 of 2013 is preferred against the dismissal of suit for divorce, while the First Appeal No. 147 of 2018 is preferred against the decree of counter-claim of the defendant/respondent for the residence right. 2. Facts of the case are that the plaintiff/appellant married the defendant/respondent on 9.5.1997. Admittedly, it was the second marriage of both plaintiff and respondent. From the first marriage, the appellant have three daughters and a son, while the respondent (wife) has a daughter from her earlier marriage. After the marriage, matrimonial discord occurred between the parties and the appellant (husband) ultimately filed suit for divorce on the ground of cruelty. The respondent/wife filed her written statement. The Court below, on the pleadings of the parties, framed following points for determination: (i) Whether the behaviour of the defendant had been cruel towards the plaintiff? If yes, its effect? (ii) Whether the plaintiff is entitled to take advantage of his acts? If yes, its effect? (iii) Relief? (iv) Whether the respondent has right to reside in the residence of the plaintiff and whether, in lieu thereof, she is entitled to get the decree for residence right in the disputed property where she is residing? (v) Whether the defendant has right of residence in the property C18, Turner Road, Claimant Towan, Dehradun, as is averred in paragraph 43 and 44 of the counter-claim? (vi) Whether the defendant is entitled for the relief sought in the counter-claim? 3. Both the parties adduced their evidence. Plaintiff examined himself as PW1, while the defendant examined herself as DW1. The Court below, after examining the evidence, dismissed the suit for divorce and decreed the counter-claim of the respondent/wife for right of residence. 4. The Court below has dismissed the petition of the plaintiff on the ground that the acts alleged by the plaintiff against his wife do not come under the category of cruelty and allegations made against the defendant (wife) are general in nature and the plaintiff failed to prove the same. 5. 4. The Court below has dismissed the petition of the plaintiff on the ground that the acts alleged by the plaintiff against his wife do not come under the category of cruelty and allegations made against the defendant (wife) are general in nature and the plaintiff failed to prove the same. 5. At this stage, we may note here that during pendency of these appeals, efforts were made for settlement between the parties on 16.4.2019, though it could not be finalised. In terms of this compromise, the appellant/plaintiff had to pay an amount of rupees seventeen lakhs and fifty thousand, as permanent alimony, to the defendant/respondent and after the payment of the said amount, the defendant/respondent agreed to vacate the residence in question and both the parties agreed for dissolution of their marriage, with appropriate petition to be filed later before the Family Court. The respondent Ms. Meera Kaintura, however, now has a second thought about the matter. According to her seventy lakh is not enough to get her a decent accommodation in Dehradun. 6. Coming now therefore to the merits of the case and having perused the evidence adduced before the Court below, we are of the opinion that the reasons given by the Court below for dismissing the suit for dissolution of marriage are not sustainable and the finding of the Court below that there is no cruelty on the part of the defendant/respondent is perverse. The evidence was placed before the trial court and scrutinized. The plaintiff/appellant in his deposition has said that the defendant/respondent often used to quarrel with his daughter. Defendant/respondent started then living in a separate room in the same house and stopped talking to any of the member of the family. She used to cook food only for herself, and that too separately. She frequently hurled abuses on her husband and even threatened to implicate him in a false case of dowry. 7. The Hon’ble Apex Court, in Praveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706 , has held 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. 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. In Raj Talreja v. Kavita Talreja, (2017) 14 SCC 194 , the Hon’ble Apex Court has observed that cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. 8. On going through the evidence on record, we find that the plaintiff/appellant (husband before the Trial Court), in his evidence has narrated in detail, the incidents of alleged cruelty suffered by him and as a cumulative effect of the same, any reasonable man would find his life unbearable with his/her spouse. Cruelty can be both physical as well as mental. Since we are dealing here with human beings and human emotions, cruelty or even “legal cruelty” cannot be precisely defined. What we can say, however, is that cruelty or cruel treatment is something which makes the life of other spouse unbearable. We are convinced that based on the allegations and the evidence submitted by the appellant before the Family Court, a case of cruelty was made out. The entire body of evidence led before the trial court, has to be evaluated in the light of the conduct of the wife. The conduct of a person has an important bearing in terms of Section 8 of the Evidence Act, 1872. 9. Section 8 of the Evidence Act, 1872 reads as under: “8. Motive, preparation and previous or subsequent conduct. – Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1. Explanation 1. – The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2. – When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.” 10. As we have seen though the wife has opposed the petition for the dissolution of her marriage yet her counter claim is not for restitution of her conjugal rights as is generally the case. Her claim was only for the right of residence. She has voluntarily deprived the husband of her company and comfort of a matrimonial life. This is cruelty. 11. The so-called counter claim though was never filed separately but was brought in the written statement by way of amendment where after para 40 of the written statement, following paragraphs and reliefs were added:- “41. That the Respondent along with her daughter are residing in property bearing no. C-18, Turner Road, Clement Town, Dehradun (shared household). 42. That on 16/8/2007, the petitioner has given threat to the respondent that he will evict her from the (shared household) bearing no. C-18, Turner Road, Clement Town, Dhehradun, which is under occupation of the respondent. 43. That when the respondent had reached the shared household on 16-08-07, after the hearing in the above case, the petitioner had threatened the respondent and had asked her to vacate the property no. C-18, Turner Road, Clement Town, Dehradun and had threatened the respondent that in case she and her daughter do not vacate the premises then serious harm would be caused to them. 44. That the respondent has no other permanent place of residence. 45. That it is expedient in the interest of justice, that this learned court may very kindly be pleased to pass residence order in favour of the respondent and the petitioner be restrained from dispossessing or in any other manner disturbing the possession of the respondent in the shared household bearing no. C-18, Turner Road, Clement Town, Dehradun, or in the alternative the Petitioner may kindly be directed to earmark a specific portion of property bearing no. C-18, Turner Road, Clement Town, Dehradun for the Respondent. 46. C-18, Turner Road, Clement Town, Dehradun, or in the alternative the Petitioner may kindly be directed to earmark a specific portion of property bearing no. C-18, Turner Road, Clement Town, Dehradun for the Respondent. 46. That the counter claim for the purposes of court fees and jurisdiction is being valued at Rs. 10,000/- on which the prescribed court fees has been paid. 47. Reliefs: The respondent prays for the following reliefs:- (a) Residence orders as contemplated in Section 19 read with Section 26 of the Protection of Women from Domestic Violence Act, 2005 may very kindly be passed in favour of the Respondent and against the Petitioner restraining the Petitioner from in any way dispossessing or in any manner disturbing the possession of the Respondent from the shared household or in the alternative or in the alternative the Petitioner may kindly be directed to earmark a specific portion of property bearing no. C-18, Turner Road, Clement Town, Dehradun for the Respondent. (b) Any further and other suitable orders to which the Respondent is found to be entitled may also be granted to her. (c) Full cost of the litigation may kindly be granted to the Respondent.” 12. It was also framed as an issue by the trial court i.e. whether the respondent has a right of residence in the house of the plaintiff and whether, in lieu thereof, she is entitled to get the decree of residence right in the disputed property where she is residing. In other words, her entire case is not to stay with the petitioner but to a residence for herself. 13. Coming to the aspect of grant of permanent alimony, it is settled proposition of law that the same depends on the totality of circumstances and the social strata from which the parties come from. The husband is a retired bank employee retired from Oriental Bank of Commerce and is getting a monthly pension of Rs. 14,000/- (Rupees Fourteen Thousand only). Keeping in view the financial capacity and the status of the husband, we direct the plaintiff/appellant (husband) to pay to the defendant/respondent (wife) a sum of Rs. 17,50,000/- (Rupees seventeen lakhs and fifty thousand only) as one-time permanent alimony within two months from today. After receiving the aforesaid amount, the defendant/respondent shall forthwith vacate the premises (C18, Turner Road, Dehradun). Keeping in view the financial capacity and the status of the husband, we direct the plaintiff/appellant (husband) to pay to the defendant/respondent (wife) a sum of Rs. 17,50,000/- (Rupees seventeen lakhs and fifty thousand only) as one-time permanent alimony within two months from today. After receiving the aforesaid amount, the defendant/respondent shall forthwith vacate the premises (C18, Turner Road, Dehradun). It is made clear that any amount, paid to the defendant/respondent pursuant to the aforementioned agreement, shall be adjusted in the permanent alimony now granted by this Court. 14. Both these appeals are accordingly allowed. Judgment and order under challenge is set aside. The suit for divorce filed by the husband under Section 13 of the Hindu Marriage Act is decreed and the marriage of the parties, solemnized on 9.5.1997, is dissolved by a decree of divorce. The wife shall be paid permanent alimony of Rs. 17,50,000/- (Rupees seventeen lakhs and fifty thousand) and after receipt of this amount, she shall vacate the aforementioned premises where she is living at present. 15. The lower court record be sent back.