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2020 DIGILAW 326 (CAL)

S. Rani v. V. Subbaiah

2020-03-02

HARISH TANDON, MD.NIZAMUDDIN

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JUDGMENT Harish Tandon, J. - Though the marriage is considered as a social institution where two individuals capable of entering into a wedlock took a resolution to remain in a civilised social order and care about the values to create a concrete bond and its sustainability throughout the life. It is thus a promise not only to be bonded physical but spiritually, emotionally despite the individual in-capabilities, attitudinal differences, disparity in economical as well as geographical differences with fond belief to remain united by creating a mutual trust and above all for advancement of human race. Despite having brought up in different atmosphere, social disparity and perception about the life, they pledge and promise to remain one. The human life is complex so also the human behaviour which is more complicated. The marriage is an affirmance of a civilised social order when two individuals entered into wedlock and share a common roof despite their differences in emotions, egos and even sometimes economical disparities. It is, in other words, a mutual trust which is a common thread in between two individuals which make them united with positive inclination to remain together till the last breath. The ethos of life more particularly the egoistic approach became a seminal issue of discord and the spouse crave for the dissolution of marriage i.e. freedom from the institutional as well as the individual bond. 2. The present case is more disturbing when the husband has approached the Court for severance of nuptial tie in the form of dissolution of marriage on the cruelty and desertion. The parties are in half centuries of life having two grown up children placed well in their life. A proceeding under Section 13(1)(a) and 13(1)(b) of the Hindu Marriage Act, 1955 is filed by the husband/respondent before the Family Court seeking dissolution of marriage after 27 years of marriage on the ground of cruelty and desertion. The marriage between the parties was solemnised on 9 th July, 1989 and two sons were born on 26.09.1990 and 12.06.1993 respectively. The husband alleges that they happily lived together till 1993 when the wife, the appellant, left the matrimonial house without his consent and deserted many times without any valid reasons. It is further stated that lastly the wife/appellant deserted the respondent on 12.12.2005 and communicated her decision not to live together. The husband alleges that they happily lived together till 1993 when the wife, the appellant, left the matrimonial house without his consent and deserted many times without any valid reasons. It is further stated that lastly the wife/appellant deserted the respondent on 12.12.2005 and communicated her decision not to live together. The husband/respondent states that the wife/appellant left for Malaysia without his consent and spent the sale proceeds of the landed properties belonging to the husband/respondent for her lavish and extravagant life. 3. After returning from Malaysia she filed an application for maintenance under Section 125 of the Cr.P.C being Misc. Case No. 2 of 2006 which was dismissed on the ground that the wife wilfully deserted the husband. The revisional application filed against the said order was also dismissed. Subsequently, the wife lodged complaint with the local Police as well as the Social Welfare department to harass the husband. It is thus stated that because of such desertion, the husband was deprived of the happiness of the marriage and was compelled to do the household work causing severe pain and suffering amounting to cruelty. 4. The wife contested the said proceeding denying such allegations and categorically asserted that she was treated badly by the husband since after the marriage being a habitual drinker. It is further asserted that the husband has contracted a second marriage by naming a lady and residing in a government accommodation. She, thus, prayed for dismissal of the application for dissolution of marriage. 5. The husband stood as a sole witness, on the other hand the wife apart from herself cited two more witnesses to corroborate the factum of cruelty perpetuated upon her and repelled the contention of desertion alleged by the husband. The Trial Court framed several issues but the main issues relate to the cruelty as well as desertion. 6. So far as the issue pertaining to cruelty is concern the Trial Court held that since the wife/appellant has failed to prove by cogent evidence that husband/respondent has contracted a second marriage with another lady it tantamounts to mental cruelty. 7. On the ground of desertion, the Trial Court relied upon an order passed in proceeding under Section 125 of the Cr.P.C by the Judicial Magistrate wherein, it was held that she deserted the husband and held that the husband has been able to prove the ground of desertion. 7. On the ground of desertion, the Trial Court relied upon an order passed in proceeding under Section 125 of the Cr.P.C by the Judicial Magistrate wherein, it was held that she deserted the husband and held that the husband has been able to prove the ground of desertion. The Trial Court further held that the wife has failed to prove that after coming from Malaysia, she joined the petitioner which tantamount to a desertion. Interestingly, the Trial Court further observed that the marriage between the parties have been irretrievably broken down and, therefore, there is no legal bar to grant a decree for divorce. 8. The learned advocate appearing for the wife/appellant was critical in his submission that the learned Judge of the Family Court have usurped the power of the Supreme Court enshrined under Article 142 of the Constitution of India in granting relief in the form of dissolution of marriage on the ground of irretrievable breakdown of marriage. He further submits that the wife/appellant was all along ready and willing to live with the husband and there is no evidence forthcoming from the deposition of the husband that the wife deserted the husband without any justiciable cause. He further submits that the ground of cruelty has not been proved nor there is enough pleading in the plaint in this regard. He arduously submits that mere naming a lady with whom the husband has contracted a second marriage itself cannot be a ground of cruelty and placed reliance upon a judgement of the Division Bench of this Court rendered in case of Smt. Ananta vs. Ramchander reported in AIR 2009 CAL 167 . According to the learned advocate for the appellant the aforesaid Division Bench judgement was assailed before the Supreme Court and while affirming the same, it is held that mere failure to prove that the husband has extramarital affair with the another lady does not appear to be so grave entitling the decree on the ground of cruelty. The learned advocate further attacks the impugned judgement where the learned Judge has relied upon the order passed in proceeding under Section 125 of the Cr.P.C that the said order has no binding efficacy on the Civil Court as held in the case of Shanti Kumar Panda vs. Shakuntala Devi reported in (2004) 1 SCC 438 . The learned advocate further attacks the impugned judgement where the learned Judge has relied upon the order passed in proceeding under Section 125 of the Cr.P.C that the said order has no binding efficacy on the Civil Court as held in the case of Shanti Kumar Panda vs. Shakuntala Devi reported in (2004) 1 SCC 438 . It is further submitted that the irretrievable breakdown of the marriage cannot be a ground for divorce and the aforesaid proposition has been clarified by the Supreme Court in the case of Vishnu Dutt Sharma vs. Manju Sharma reported in (2009) 6 SCC 379 . It is thus submitted that impugned judgement suffers from perversity and non application of mind and therefore liable to be set aside. 9. Per contra, the learned advocate for the respondent submits that the Trial Court has consider all the aspect of the matter, more particularly, the serious allegations made in the written statement/written objection on the character of the husband which itself amounts a cruelty. He further submits that the parties are living apart since 2005 and there is no chance of reconciliation and, therefore, there is no error in the judgement while passing a decree for divorce. 10. On the conspectus of the pleadings, evidences and submissions advanced at the bar by the respective counsels the question which requires an answer in the instant appeal whether the husband/respondent have been able to prove the grounds of cruelty and desertion in order to succeed in getting a decree for divorce. Another ancillary point which emerge because of the findings made in the impugned judgement relating to a concept of irretrievable breakdown of marriage. 11. Admittedly, the parties have fallen apart. The evidence of the husband is categorical that he does not want to live with the wife because of her alleged cruel act perpetrated upon him. The parties are governed by the Hindu Marriage Act and cruelty and desertion are one of the grounds of dissolution of marriage. It is no longer res integra that any one of such ground, if proved, may entitle a spouse to get a decree for divorce against the other spouse. The facts which are pleaded in the plaint touching upon the ground of cruelty is lack of understanding and disliking of the wife for the husband and her quarrelsome behaviour. It is no longer res integra that any one of such ground, if proved, may entitle a spouse to get a decree for divorce against the other spouse. The facts which are pleaded in the plaint touching upon the ground of cruelty is lack of understanding and disliking of the wife for the husband and her quarrelsome behaviour. It is further stated that complaints were lodged with the Police authorities as well as Social Welfare department which is harassive. The husband has further stated in the plaint that he is deprived of the happy marriage life and compelled to do house work which causes pain and sufferance. The examination-in-chief is more or less replica of the pleadings made in the plaint. On the other hand the wife stated in the evidence that she was all along ill-treated by the husband and did not lead a single day in happiness because of his habit of drinking. She further stated that the husband has an affair with an another lady named by her and moment the protest was made she was beaten mercilessly and driven out of the matrimonial house alongwith the children on 12.12.2005. She denied the suggestion made by the husband in the cross-examination that she deserted him without any reasonable cause. Two other witnesses were cited by the wife to corroborate her stand of the cruelty by the husband which led her to live separately. 12. The seminal point which emerges and requires consideration by us whether the circumstances pleaded and brought in evidence constitutes a cruelty within the meaning of Section 13 of the said Act. Though the word cruelty is neither defined in the Act nor is prefixed or attached to it but it is beyond cavil of doubt that it imbibes within itself both mental and physical cruelty. There are plethora of judgments wherein it is somewhat settled that the mental cruelty is one of integral part of the word 'cruelty' appearing in the said section. Sometime the mental cruelty causes more serious injury than the physical cruelty inculcating the sense of apprehension of serious injury while remaining in union. The concept of mental cruelty is of wide amplitude depending upon the various factors more particularly, in changing period of time. Sometime the mental cruelty causes more serious injury than the physical cruelty inculcating the sense of apprehension of serious injury while remaining in union. The concept of mental cruelty is of wide amplitude depending upon the various factors more particularly, in changing period of time. What may constitute a mental cruelty to one may not be the same to the other as it differs from an individual to an Individual because of their economic condition, social status, cultural disparity, temperament and status in life. It varies on the magnitude of the mental pain, agony and the sufferance; above all inculcating a sense in the mind of an individual that living together would cause damage in life. It is, in fact, a state of mind, feeling of deep anguish, discomfort, disappointment and frustration in the mind of one individual because of the conduct and the act of other individual. It has inseparable nexus with the human conduct or a human behaviour and varies from an individual to individual. 13. In the instant case, the foundational fact on the cruelty is conspicuously absent. The husband/respondent has not also proved with convincing material the act of cruelty of the wife. Mere quarrelling with the husband cannot be regarded as a cruel act of the wife as the same is attributable to the normal wear and tear of the conjugal life. The husband is compelled to do the household work and deprived of the happiness of life cannot be regarded as a mental cruelty but as a part of the normal human behaviour. It is a common human behaviour to dissent from one another. It is very difficult to bring the human behaviour within the definite straight jacket formula and it is nearly impossible to give any definition to it by advancement in society. By passage of time what may constitute a cruelty may not be the same. The concept of mental cruelty cannot remain static and depending upon the changing pattern of society, elevation of sensitivity, imparting of education changing of humans value and their value system. 14. What swayed the mind of the learned Judge in the trial Court is the un-substantiated, non-corroborative and lack of convincing materials on the allegation of the extra marital affairs. The concept of mental cruelty cannot remain static and depending upon the changing pattern of society, elevation of sensitivity, imparting of education changing of humans value and their value system. 14. What swayed the mind of the learned Judge in the trial Court is the un-substantiated, non-corroborative and lack of convincing materials on the allegation of the extra marital affairs. The Division Bench in case of Smt. Ananta (supra) held that it is very difficult to prove the extra marital affairs which is more secret than the open one and cannot constitute a cruelty. In these words:- 'The appellant had mentioned the name of the lady with whom the respondent allegedly was having an affair. Thought the respondent admitted that the lady was working with him, the allegation that he was having an affair with her was denied. If one is involved in an extra marital affair, which is a social crime, it would hardly be an open affair and in most cases be a clandestine one. It would be difficult for a wife to prove such allegation by adducing witnesses. Mere, failure of the wife in such a case to prove her allegation ought not to have weighed in the mind of the learned trial Court in decreeing the suit and thereby putting an end to a long standing relationship of almost fourteen years. 27. For the reasons aforesaid and on analysis and evaluation of the entire evidence, we are unable to agree with the learned trial Court that the ground of mental cruelty had duly been established by the respondent.' 15. The aforesaid judgment of the Division Bench is upheld be the Supreme Court with the following observations:- '15. The last instance of cruelty alleged by the husband is the allegation made by the wife that he has been involved in an extra marital affair with the daily rated mazdoor lady working under him. It is true that the defendant-wife has named the said lady with whom her husband allegedly was having an affair. The plaintiff-husband though admitted that the said lady was working under him, has specifically denied the said allegation. The courts below have concurrently found that the wife has not substantiated the said allegation. Mere failure to prove such allegation would not entitle the husband to a decree of divorce as rightly held by the High Court. The plaintiff-husband though admitted that the said lady was working under him, has specifically denied the said allegation. The courts below have concurrently found that the wife has not substantiated the said allegation. Mere failure to prove such allegation would not entitle the husband to a decree of divorce as rightly held by the High Court. The conduct of the wife that had been complained of appears to be not so grave and weighty that it can be treated to be more serious than ordinary wear and tear of married life.' 16. The law enunciated in the aforesaid report leaves no ambiguity that mere alleging that the husband has an extra marital affairs and failure to prove the same, does not constitute a cruelty. 17. The Trial Court has further found that the wife has deserted the husband without any plausible cause solely on the order of the Judicial Magistrate passed under Section 125 of the Cr.P.C. The desertion has not been defined in the Act but is one of the ground on which the decree for dissolution of marriage can be passed. In Savitri Pandey vs. Prem Chandra Pandey reported in (2002) 2 SCC 73 , the apex Court succinctly highlighted the incident of desertion in the following: - '8. Desertion, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that others consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitation the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.' 18. What can be deduced from the aforesaid report that the desertion in a sense means the intentional disassociation and abandonment of one spouse from the company of the other without his consent or reasonable cause. There are two essential conditions which are required to be proved in the case of desertion firstly, the act of separation and secondly refusal to cohabit permanently i.e. animus deserendi. 19. The desertion may not always be seen in the perspective of leaving the matrimonial house or from common shareholding but may also be assumed by withdrawal from a state of things. It is one thing to say that one of the spouse have deserted the other without any plausible reasons but it is totally different when such desertion is an outcome of any forced circumstances. Mere, living separately for a considerable period of time does not ipso facto constitute desertion if the proper explanations are offered in this regard. 20. There are varied forms of desertion and sometime the constructive desertion may also be constituents thereof. Even, if, the spouse are living under the same roof but cease to cohabit with each other, having no contact and the liking and disliking as well as hatred is projected against each other may also constitute a desertion. 21. In the instant case, the husband/respondent have stated that the wife has left the matrimonial house on 12.12.2015 without any reasonable cause and they are living separately since thereafter. The wife has categorically stated in her evidence that she was driven out of the house on the said day along with her children by the husband after she was beaten mercilessly. There appears to be a plausible explanation for such disassociation and living separately for the circumstance created by the husband which occasioned the leaving of the house by the wife. The husband may be said to be deserter and not the wife. There appears to be a plausible explanation for such disassociation and living separately for the circumstance created by the husband which occasioned the leaving of the house by the wife. The husband may be said to be deserter and not the wife. There is no attempt on the part of husband to reunite and to live together and, therefore, a person who himself is a deserter, is not entitle to get a decree for divorce on the ground of desertion. 22. The trial Court has relied upon an order passed by the Judicial Magistrate under section 125 of the Cr.P.C as a guiding force on the proof of desertion. It is somewhat settled that a decision of the Criminal Court is not binding upon the Civil Court though the converse is true. The inspiration can be drawn from the observation of the Supreme Court made in Shanti Kumar Panda (supra), wherein it is held:- '23. For the purpose of legal proceedings initiated before a competent court subsequent to the order of an Executive Magistrate under Sections145/146 of the Code of Criminal Procedure, the law as to the effect of the order of the Magistrate may be summarized as under: (1) The words 'competent court' as used in sub-section (1) of Section 146 of the Code do not necessarily mean a civil court only. a competent court is one which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to the entitlement as to possession over the property forming the subject-matter of proceedings before the Executive Magistrate: (2) A party unsuccessful in an order under Section 145 (1) would initiate proceedings in a competent court to establish its entitlement to possession over the disputed property against the successful party. Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent court consequent upon attachment under Section 146 (1) of the Code it is not necessary to seek relief of recovery of possession. As the property is held custodial egis by the Magistrate for and on behalf of the party who would ultimately succeed from the court, it would suffice if only determination of the rights with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking for the relief of possession. As the property is held custodial egis by the Magistrate for and on behalf of the party who would ultimately succeed from the court, it would suffice if only determination of the rights with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking for the relief of possession. (3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceeding under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and wait before the competent court at the interlocutory state. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out for several pieces of evidence. (4) The court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate. However, to say so is merely stating a rule of caution or restraint, on exercise of discretion by court, dictate by prudence and regard for the urgent/emergent executive orders made within jurisdiction by their makers; and certainly not a tab on the power of court. The court does have jurisdiction to make an interim order including an order of ad interim injunction inconsistent with the order of the Executive Magistrate. The jurisdiction is there but the same shall be exercised no as a rule but as an exception. even at the stage of passing an ad interim order the party unsuccessful before the Executive Magistrate may on material placed before the court succeed in making out a strong prima facie case demonstrating the findings of the Executive Magistrate to be without jurisdiction, palpably wrong or self-inconsistent in which or the like cases the court may, after recording its reasons and satisfaction, make an order inconsistent with, or in departure from, the one made by the Executive Magistrate. The order of the court - final or interlocutory, would have the effect of declaring one of the parties, entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of Section 145.' 23. The order of the court - final or interlocutory, would have the effect of declaring one of the parties, entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of Section 145.' 23. On the finding of irretrievable breakdown of the marriage as held by the trial Court, we do not find that the same can be a ground for divorce under Section 13 of the said Act. The legislature have not incorporated in the said section as a ground for divorce till date. The Supreme Court enjoins an special power under Article 142 of the Constitution of India in providing a complete justice which does not partake declaration of law under Article 141 of the Constitution of India to have its binding force. The enlightening observations of the Supreme Court in case of Vishnu Dutt Sharma (supra) may be seen in this regard wherein it is held :- '11. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. 12. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for Parliament to enact or amend the law and not for the courts. Hence, we do not find force in the submission of the learned counsel for the appellant.' 24. We are, therefore, unable to subscribe the view taken by the trial Court on the issues relating to cruelty, desertion and irretrievable breakdown of marriage and, therefore, the impugned judgment is set aside. The suit filed by the husband is dismissed. There, shall be, no order as to costs.