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2019 DIGILAW 512 (RAJ)

Kiran v. Harishankar Yadav

2019-02-13

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT : GOVERDHAN BARDHAR, J. 1. Challenge in the instant appeal has been made to the judgment & decree dated 24.09.2015 passed by the learned Judge, Family Court No. 2, Jaipur, whereby the learned Family Court while allowing the application filed by the non-appellant/applicant-husband ('the applicant-husband' for short) under section 13 of the Hindu Marriage Act, 1955 ('the Act of 1955' for short) passed a decree of divorce against the appellant/non-applicant ('the non-applicant-wife' for short) and dissolved the marriage. 2. Brief facts of the case are that the applicant husband filed a petition under section 13 of the Hindu Marriage Act, 1955 ('the Act of 1955' for short) against the non-applicant- wife seeking decree of divorce before the learned Family Court No. 2, Jaipur mentioning therein that on 24th June 2011 the marriage was solemnized in between the parties as per Hindu Rites at Village Amarpura, District Jaipur. After marriage, the non-applicant-wife on the pretext of illness denied to make physical relations with him and slept in another room and told that she did not want to marry him but she wanted to marry her class-mate of Ghaziabad with whom she had close relations. 3. The non-applicant-wife filed written statement of total denial mentioning therein that she never refused for physical intercourse with her husband and also denied allegation about the relations with class-mate, rather the applicant-husband lodged an FIR for the offences under sections 384, 385, 387, 389 and 129 IPC at Police Station Bhankrota against her and her family members. The non-applicant-wife further stated that her husband and his family members teased her in the name of bringing less dowry and she was not even permitted to make any telephone conversation or talk with any person. Uncle of the applicant husband tried to tease the non-applicant-wife by touching indecently and used to make vulgar gestures. The divorce petition has been filed with intention to any how get rid of from the non-applicant-wife. 4. On the basis of pleadings of both the parties, the learned Family Court framed following issues:- 1. Whether on the facts mentioned in the petition, the non-applicant-wife committed cruelty with the applicant- husband after marriage? 2. Relief." 5. We have heard learned counsel appearing for the respective parties, perused the impugned judgment & decree passed by the learned Family Court and scrutinized and scanned the record of the case. 6. Whether on the facts mentioned in the petition, the non-applicant-wife committed cruelty with the applicant- husband after marriage? 2. Relief." 5. We have heard learned counsel appearing for the respective parties, perused the impugned judgment & decree passed by the learned Family Court and scrutinized and scanned the record of the case. 6. The applicant-husband in addition to his statement, got recorded the statements of Harsahay Yadav (AW 2), Gulab Chand (AW 3), Gopal Yadav (AW 4) and Manguram (AW 5). On the other hand, the non-applicant-wife in addition to her statement, got recorded the statements of Ramkaran (DW 2), Om Prakash (DW 3) and exhibited 29 documents. 7. The learned Family Court vide judgment dated 24.08.2018 allowed the application filed by the applicant-husband u/S. 13 of the Act of 1955, dissolved the marriage solemnized on 24.06.2011 and passed a decree of divorce. 8. Learned counsel for the non-applicant-wife argued that the learned Family Court without considering the material and evidence available on record and only relying upon the story of the applicant-husband passed the decree of divorce and dissolved the marriage on the application filed by the applicant-husband. The non-applicant - wife in the written statement denied the allegations made against her in connection with relations with any other person before or after solemnization of marriage. She also denied the allegations of misbehaving with the applicant-husband but argued that on the other hand the applicant-husband used to tease non-applicant-wife for or in connection with demand of dowry. The applicant - husband through the application sought the decree of divorce on the ground of cruelty but neither from the contents made in the application for seeking dissolution of marriage nor from the other evidence available on record, any cruelty is made out. It is settled proposition of law that the decree of divorce on the ground of cruelty can only be granted when it is proved that the cruelty is so grave that it is not possible for the aggrieved party to live with the other, but in the present case the learned Family Court failed to consider such an important aspect of the case. The learned Family Court while deciding the application committed a serious error in shifting the burden of proof on the non-applicant- wife, whereas as per the settled law it is the duty of the applicant- husband to prove its case. The learned Family Court while deciding the application committed a serious error in shifting the burden of proof on the non-applicant- wife, whereas as per the settled law it is the duty of the applicant- husband to prove its case. The non-applicant-wife never refused to have relations with her husband rather she has a son from the applicant-husband. The finding recorded by the learned Family Court that the non-applicant-wife deprived the applicant-husband from consummation of marital relations with the applicant-husband, is perverse and contrary to the material available on record. 9. Learned counsel appearing for the applicant- husband opposed the appeal, supported the impugned judgment and decree passed by the learned trial court and argued that Harishankar (PW 1), who is applicant-husband in his testimony deposed that when the family members of non-applicant-wife forcefully kept the non-applicant-wife to live with him, she gave beating to him and on this issue the non-applicant-wife did not cross-examine the applicant-husband. The finding recorded by the learned Family Court that the non-applicant-wife deprived the applicant husband from consummation of marital relations and in this way the applicant-husband suffered mental cruelty, is just and proper and need no interference of this Court. 10. The petition under section 13(1)(ia) of the Act of 1955 was filed by the applicant-husband for seeking divorce on the ground of cruelty. This section casts an obligation on the applicant-husband to produce evidence on record with respect to the conduct of the non-applicant- wife. The applicant-husband must therefore prove that the non-applicant- wife has treated him with cruelty within the meaning of section 13(1)(ia) of the Act of 1955. 11. In the matter of Naval Kishore Somani vs. Poonam Somani, AIR 1999 p. 1, the Division Bench of Andhra Pradesh High Court observed ad-infra:- "It is necessary to remember that the term "cruelty" has nowhere been defined in the Act. It is also not possible to define the same. Human conduct is so complex that a rigid definition of 'cruelty' is not possible. The Legislature has purposely avoided to define "cruelty". It is for the Courts to interpret, analyse and define as to what would constitute 'cruelty', in the facts of a particular case. While deciding so many factors have to be borne in mind. Human conduct is so complex that a rigid definition of 'cruelty' is not possible. The Legislature has purposely avoided to define "cruelty". It is for the Courts to interpret, analyse and define as to what would constitute 'cruelty', in the facts of a particular case. While deciding so many factors have to be borne in mind. In particular social status, customs, traditions, caste and the community, upbringing and the public opinion which prevails in particular society, as well as in the particular locality. Thus before deciding as to whether 'cruelty' has been proved or not variety of factors have to be considered. It is however almost accepted by and large that cruelty means such conduct of the other side by which the petitioner cannot reasonably be expected to live with the respondent. This is of course a very broad approach. When a petitioner comes to the Court for seeking relief on the ground of 'cruelty', it is expected that the petitioner would give particulars of the alleged cruelty. It is not that by merely averring in the petition that the respondent treated the petitioner with cruelty, the petitioner can hope to make out his case. Particulars of 'cruelty' have to be given. The mere fact that the parties are unhappy because of some usual wear and tear or due to some failings in the temper, would not be sufficient to spell out a case of cruelty. This is because different temperaments is always the Rule. Cohabitation cannot be disrupted merely because of different temperaments of spouses. The expression 'cruelty' comprehends both physical and mental cruelty. It is not possible to say that every averment or allegations made against the other party showing some incompatibility amounts necessarily to 'cruelty'. It is of course true that for finding out whether conduct of one party towards other amounts to 'cruelty' it is not necessary to prove the intention of the respondent. Irrespective of the intention of the respondent if his/her conduct or behaviour makes it impossible to cohabit for any reasonable person, that would constitute 'cruelty'. It is the result which is more important. Therefore, it is for the petitioner to state and prove as to what was the effect on him of the alleged conduct or behaviour of the respondent. Irrespective of the intention of the respondent if his/her conduct or behaviour makes it impossible to cohabit for any reasonable person, that would constitute 'cruelty'. It is the result which is more important. Therefore, it is for the petitioner to state and prove as to what was the effect on him of the alleged conduct or behaviour of the respondent. As pointed out earlier, it is quite possible that a particular conduct may amount to 'cruelty' in one case but the same conduct necessarily may not amount to 'cruelty' due to change of various factors in different set of circumstances. We are therefore of the view that it is essential for the petitioner, who claims relief, to prove that a particular part of conduct or behaviour resulted in "cruelty" to him. No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that particular conduct will under all circumstances amount to 'cruelty' vis-à-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to 'cruelty'." 12. The applicant-husband filed the divorce petition on 17.01.2013. In petition it is stated that the marriage was solemnized on 24.06.2011. In para No. 1 of the petition it is specifically stated that out of the wedlock, couple had no issue. In the petition it is stated that the matrimonial relations were subjected to stress and stray. It is also stated that non-applicant wife had said that she did not want to marry with the applicant husband and threatened to implicate him in a false case for demand of dowry. The applicant- husband found a letter on the bed which was hand written by herself. In October 2012, the relatives of the wife also threatened to implicate him in a false criminal case. On 05.11.2012 the non-applicant-wife threatened that she will ruin the family and demanded Rs. 1 crore and pressurized to give half share in the immovable property. In Para No. 1 it is also alleged that from one and a half months of period after solemnization of marriage, couple had no conjugal relations but the non-applicant- wife declared her pregnancy and she was found pregnant. The non-applicant- wife denied all the allegations leveled against her and replied that out of physical relations with the applicant-husband, she gave birth to a son namely; Loveleen. The non-applicant- wife denied all the allegations leveled against her and replied that out of physical relations with the applicant-husband, she gave birth to a son namely; Loveleen. She never refused for physical intercourse. She never threatened the applicant-husband to lodge the false case rather the applicant- husband lodged an FIR for the offences under sections 384, 385, 387, 389 and 129 IPC at Police Station Bhankrota, against the non-applicant-wife and her family members. In cross-examination the husband Hari Shankar Yadav (PW 1) admits that the couple had physical relations. It reflects that there is major contradiction in the pleadings and proof. In the petition it is alleged that couple had no physical relations but in cross-examination the husband admits that there were physical relations between them. Thus the contradictory stand taken in the petition, cannot be treated trustworthy. The learned Family Court in its finding wrongly opined that the non-applicant-wife deprived the applicant-husband from conjugal rights and refused to have physical relations with the applicant-husband. The wife gave birth to a male child during marriage. There is nothing on record to suggest that party to the marriage had no access to each other at any time when he could have been begotten. The applicant husband failed to prove that he was deprived from conjugal life by the wife. It is not in dispute that the applicant-husband was living in a joint family but in evidence no other family member was produced to prove the ground of cruelty as alleged by the applicant- husband in the petition. 13. In a case reported in Dr. N.G. Dastane vs. Mrs. S. Dastane, (1975) 2 Supreme Court Cases 326, the Hon'ble Apex Court in para 24 and 25 observed as under:- "24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact- situation will act on the supposition that the fact exists, if one weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is the choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear". But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged." 14. While dealing with the divorce petition filed on the ground of cruelty within the meaning of Section 13(1)(ia) of the act of 1955, the inquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the applicant-husband a reasonable apprehension that it will be harmful or injuries for him to live with the non-applicant- wife. 15. In the petition specific allegations are not made with specific details. None of the witness produced by the applicant-husband narrated the facts which constitute the act of cruelty. 15. In the petition specific allegations are not made with specific details. None of the witness produced by the applicant-husband narrated the facts which constitute the act of cruelty. Neither from the contents of the petition nor from other evidence it is proved that the act of cruelty is so grave that it is not possible for the applicant-husband to live with the non-applicant-wife. There is no convincing evidence that the non-applicant- wife can be held liable for cruelty. The applicant- husband has laid great emphasis to the letter (Ex. 1) which was hand written by the non-applicant-wife, in which there is a threat that she will put to an end her own life, shows that it was the non-applicant's wife general complaint and that conduct does not amount to cruelty. The letter shows that the grievance of the non-applicant -wife was not so much that the allegations present a different and somewhat distorted picture. For their proper assessment and understanding it is necessary to consider the context in which those allegations came to be made. The letter was written by the non-applicant-wife to her father and uncle in the ordinary course of events, which reflects genuine attitude. 16. The Smt. Kiran @ Lakshmi Yadav-wife (DW-1) in her testimony deposed that when she tried to return form her matrimonial home, she was not given entry. She (DW 1) claimed that she was very much desirous of matrimonial life. She has given birth to a male child. 17. The applicant-husband failed to prove that the conduct of the non-applicant wife clearly amount to cruelty within the meaning of provisions of section 13(1)(ia) of the Act of 1955. Therefore, in our view the learned Family Court No. 2, Jaipur, has failed to appreciate the evidence in right perspective on the point of cruelty. As such the finding on issue No. 1 pertaining to 'cruelty' decided against the non-applicant- wife is liable to be quashed and set aside and accordingly quashed and set aside. 18. In view of the above discussion, the misc. appeal filed by the non-applicant-wife is allowed, the divorce petition filed by the applicant- husband is dismissed and the judgment & decree of divorce dated 24.08.2015 passed by learned Family Court No. 2, Jaipur in Case No. 79/2013, is accordingly quashed and set aside.