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2019 DIGILAW 507 (UTT)

Indresh Gopal Kohli v. Anita

2019-09-20

ALOK SINGH, NARAYAN SINGH DHANIK

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JUDGMENT : Narayan Singh Dhanik, J. Challenge in this first appeal, under Section 19 of the Family Courts Act, 1984, is to the judgment and order dated 15.2.2018, passed by the Additional Judge, Additional Family Court, Rishikesh, District Dehradun, whereby the Original Suit No. 55/2013 of the plaintiff/appellant (husband), for divorce under Section 13 of the Hindu Marriage Act, 1955, has been dismissed. 2. The background facts of the case necessary to be noted for deciding this first appeal are that the marriage of the appellant - husband was solemnized with the respondent - wife on 20.5.2009 as per Hindu customs and ceremonies. On 7.3.2010, a son was born to them. Appellant’s father runs a nursing home in Rishikesh and the respondent is also a doctor (B.M.S., M.D.). It was pleaded by the husband in the petition, filed under Section 13 of Hindu Marriage Act, that soon after the marriage, relations between the parties to matrimony soured and he was treated with cruelty by the respondent. It was alleged that the appellant (wife) used to create scene in the nursing home of the appellant’s father and quarrel with the husband unnecessarily, and misbehaved not only with the husband but also with his parents. Respondent threatened to commit suicide and implicate the appellant and his parents for abetting the commission of such suicide. Respondent also threatened to implicate them in the false case of torture for dowry. It was further alleged that since such behaviour on the part of the respondent continued, therefore, appellant’s father had to report to the police about her conduct on 18.8.2009 and in the night of that very day, respondent again quarrelled with the appellant and left the house of her husband and started living separately in her parental house. Efforts on the part of the appellant to persuade the respondent yielded no result and she continued to misbehave and create scene. It was also alleged that the respondent wanted to grab the property of the appellant’s father. Ultimately, the appellant filed the Original Suit No. 59/2010, in which parties to the matrimony entered into compromise on 10.4.2012 and the appellant withdrew the said suit. It was also alleged that the respondent wanted to grab the property of the appellant’s father. Ultimately, the appellant filed the Original Suit No. 59/2010, in which parties to the matrimony entered into compromise on 10.4.2012 and the appellant withdrew the said suit. However, the respondent again started misbehaving with the appellant and his parents and also threatened to implicate them in false cases and just 3-4 days after 10.4.2012 (date of compromise), respondent again left the house of the appellant and started living in Delhi. On 24.3.2013, respondent came to Rishikesh from her parental house and left after holding out threat to the appellant and his parents. Thereafter the appellant filed the Original Suit No. 55/2013 seeking decree of divorce on the ground of cruelty. 3. The respondent - wife contested the petition and filed her written statement. She admitted that she got married to the present appellant and a son born out of the wedlock. Respondent admitted that she left the appellant’s house on 18.8.2009 and thereafter on 30.3.2010 and since 2013, she has been living with her parents. However, she alleged that she did so on account of the misbehaviour and torture being done by the appellant and his parents. Respondent also alleged that the appellant and his parents wanted to use her for immoral purposes. Respondent refused to give divorce to the appellant. 4. On the pleadings of the parties, the Court below framed the following points for determination: (i) Whether the plaintiff, on the basis of the averments made in the plaint, is entitled to get the decree of divorce for dissolution of the marriage solemnized with the respondent on 20.5.2009? (ii) Relief? 5. Both the parties adduced their evidence. Plaintiff examined himself as PW1, his father Dr. C.L. Kohli as PW2 and one Jatindra Pal Anand as PW3. The defendant - respondent examined herself as DW1. The Court below, after examining the evidence, dismissed the suit for divorce holding that the reasons stated for instituting the suit and the acts alleged by the plaintiff against his wife do not come under the category of cruelty. 6. Learned Senior Counsel for the appellant contended that the Court below erred in holding that the reasons stated for instituting the suit for divorce do not come under the category of cruelty. 6. Learned Senior Counsel for the appellant contended that the Court below erred in holding that the reasons stated for instituting the suit for divorce do not come under the category of cruelty. Learned Senior Counsel also contended that it was not even pointed out as to how the evidence adduced by the appellant was in any way deficient to prove cruelty. It was further contended that on the basis of the averments made by the appellant and the evidence adduced in support thereof, the mental cruelty was clearly established and in any case the marriage has been broken down irretrievably. It was also contended that divorce in the present case should not be withheld as the parties are living separately since long which proves that their marriage has become unworkable. Learned Senior Counsel relied on the judgment of Hon’ble Apex Court in A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22 and in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 . 7. Learned Counsel for the respondent contended that general and vague allegations of misbehaviour were made which were not sufficient to prove the allegation of cruelty on the part of the respondent and the Court below has rightly rejected the suit of the appellant – plaintiff. 8. Having heard learned Counsel for the parties and on perusal of 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. Hence, this Court scrutinized the evidence. The plaintiff/appellant in his deposition has stated that the defendant/respondent often used to misbehave, argue and quarrel with him and his parents. Defendant/respondent started living separately in her parental house. She used to create scene in the nursing home of the appellant’s father and also threatened the appellant and his parents to implicate them in false cases and the appellant’s father had to report to the police about the conduct of the respondent and he also filed an FIR against her. 9. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22 , the Hon’ble Apex Court held as under: “The expression ’cruelty’ has been used in relation to human conduct or human behaviour. 9. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22 , the Hon’ble Apex Court held as under: “The expression ’cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.” 10. 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. 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. 11. 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. 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 and it appears that the couple could not live together as they have reached to a point of no return and their marriage has broken down irretrievably. 12. 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. Keeping in view the status of the parties, we direct the plaintiff/appellant (husband) to pay to the defendant/respondent (wife) a sum of Rs. 10,00,000/- (Rupees ten lakhs only) as one-time permanent alimony within one month from today. 13. The appeal is, 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 20.5.2009, is dissolved by a decree of divorce. The wife shall be paid permanent alimony of Rs. 10,00,000/- (Rupees ten lakhs only). 14. The lower court record be sent back.