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2022 DIGILAW 462 (CHH)

Uday Kumar Sharma S/o Shivkumar Sharma v. Priya Sharma D/o Shri Surendra Prasad Sharma

2022-10-20

GOUTAM BHADURI, RADHAKISHAN AGRAWAL

body2022
JUDGMENT : RADHAKISHAN AGRAWAL, J. 1. The instant appeal is against the judgment and decree dated 12.07.2018 passed in Civil Suit No. 145-A/2016 by the Family Court, Camp Court Katghora, District Korba Chhattisgarh whereby application under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (for short ‘Act of 1955’) filed by the husband seeking a decree of divorce on the ground of cruelty was dismissed. The present appeal is by the husband. 2. The husband filed a petition for divorce stating inter-alia that he was married to Priya Sharma on 19.05.2015 as per Hindu rites and rituals. After a week of marriage, on 26.05.2015 in morning, the husband saw that the wife was lying unconscious on bed and she was unable to breathe properly. The wife before her marriage was habituated to consuming liquor and Tobacco related Gutka, Pan Mashala and Mutton etc and after the marriage, she continuously used to consume such things and was spitting here and there in the room and also insisted for eating non-veg in intoxicating condition. On 30.12.2015, the wife tried to commit suicide by putting fire on her clothes but she was saved by the relatives of husband. It is further stated that without information she used to run away to the roof and tried to commit suicide by jumping over the roof, which shows her mental abnormality. The husband also pleaded that twice the wife has tried to consume pesticides. She frequently used to wander inside and outside the house with inner clothes and when the husband and his family members objected to such act, she threatened them to falsely implicate in criminal case. It is also stated that whenever she becomes pregnant, she used to take contraceptives and got rid of the pregnancy against the will of the husband and thereby she caused miscarriage. On 02.01.2016, she was taken to Psychiatrist Dr. V.P. Bajpai and thereafter referred to Dr. Prakash Narayan Shukla, Raipur. The husband was also threatened by the wife and in-laws to send him to jail for demand of dowry and cruelty, therefore, the husband made a complaint against brother and mother of the wife in Police Station Banki Mongra as well as Superintendent of Police, but the complainant was advised to take recourse to the procedure in a Court of law because of non-cognizable offence. Wife has abused and misbehaved with husband as well as his family members and also threatening to commit suicide. In such circumstance, the husband was not in a position to live with the wife and requested to grant a decree of divorce. 3. Per contra the wife, in her reply contended that she does not have any habit of consuming intoxicants as alleged by the husband and it is the husband who used to usually come at late nights in an inebriated condition and she does not have any habit of tobacco related intoxication like Pan, Tambaku, Gutka. It is pleaded that she is an educated lady and was previously working as a teacher. The husband and her mother-in-law had misbehaved with her and taunting her regarding dowry. She was medically treated by Dr. V.P. Bajpai on 02.01.2016 and thereafter, the husband has taken her to Dr. Prakash Narayan Shukla, Raipur. On 08.01.2016 and when Dr. Shukla had given advice to admit her in the hospital, but the husband took her back to the home without admitting in hospital. It is stated in her reply that neither she nor her relatives had ever threatened the husband and in-laws. It is also contended that when she was not admitted in hospital by her husband in Raipur and without providing any treatment, husband sent the wife to her maternal house on 20.02.2016, thereafter, her family members have arranged to treat her by Dr. Shukla Hospital where she was admitted for 21 days. She has further stated that the husband was negligent and careless. 4. Learned counsel for the husband would submit that the evidence of the husband would show that the wife has developed abnormal behaviour and used to hurl abuses on the entire family of the husband and was addicted to consume intoxicants. He would further submit that the husband was not cross-examined and his evidence was not rebutted. The wife attempted to commit suicide for many times and her such an act would also amount to cruelty. He would further submit that she was suffering from schizophrenia before marriage, which was not informed to the husband. He would further submit that the husband was not cross-examined and his evidence was not rebutted. The wife attempted to commit suicide for many times and her such an act would also amount to cruelty. He would further submit that she was suffering from schizophrenia before marriage, which was not informed to the husband. It is contended that the learned Family Court failed to take into account the said facts and eventually came to a wrong finding, hence, the judgment and decree of the Family Court is liable to be set aside and divorce be granted in his favour. 5. Per contra, learned counsel for the wife would submit that the impugned judgment and decree passed by the Family Court is well merited, which do not call for any interference. 6. We have heard learned counsel for the parties at length and have also perused the record. 7. The Family Court has refused to grant decree of divorce on the ground that the husband has failed to prove commission of mental cruelty by the wife. Therefore, the question which arose for consideration in this appeal is whether in the state of evidence on record, the wife has committed cruelty on the husband. 8. Record of the Family Court would show that on 22.08.2017, the wife had filed written statement and the case was fixed for framing of issues on 05.02.2018. On that date, she did not appear and the Family Court had fixed the date of appearance of wife on 08.03.2018. On that date, despite repeated calls, wife remained absent and then, Family Court proceeded ex-parte against the wife and case was fixed for applicant/plaintiff's evidence. On 10.04.2018, again the case was fixed for 10.05.2018 for applicant's evidence and thereafter again, the case was fixed for plaintiff's evidence on 10.07.2018. On 10.07.2018, evidence of Uday Kumar Sharma (PW-1), Sunder Banjare (PW-2) and Smt. Binda Devi (PW-3) was adduced. However, the wife did not choose to appear and examine herself before the Family Court and after examination of plaintiff/husband and his witnesses, final arguments were heard and later on, the case was fixed for judgment. The judgment was pronounced on 12.07.2018 by the learned Family Court. 9. The word “cruelty” is not defined in Hindu Marriage Act, 1955. However, the wife did not choose to appear and examine herself before the Family Court and after examination of plaintiff/husband and his witnesses, final arguments were heard and later on, the case was fixed for judgment. The judgment was pronounced on 12.07.2018 by the learned Family Court. 9. The word “cruelty” is not defined in Hindu Marriage Act, 1955. In the matter of Naveen Kohli vs. Neelu Kohli, (2006) 4 SCC 558 , the Supreme Court held that the word “cruelty” has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that members of the petitioner’s family are lunatics and that a streak of insanity runs through his entire family is also an act of mental cruelty. 10. The Supreme Court in V. Bhagat vs. Mrs. D. Bhagat, (1994) 1 SCC 337 held that mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 11. In Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511 , the Supreme Court has indicated illustrative cases where inference of mental cruelty can be drawn. They are reproduced as under: “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty.” The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 12. Husband/Uday Kumar Sharma (PW-1) in his examination-in-chief has deposed that the marriage in between the parties was solemnized on 19.05.2015 as per Hindu rites and rituals. Initially, the wife lived peacefully with him and after few days of marriage, her behaviour changed drastically and she started quarelling frequently with him and his family members. He has further deposed that she used to consume intoxication and other such substances. He has stated that on 30.12.2015 she tried to commit suicide by setting her clothes on fire. She further tried to jump over the roof and also tried to commit suicide by consuming pesticides on two occasions, but she was saved by family members of the husband. It is further stated that whenever she becomes pregnant, she herself caused miscarriage by taking contraceptives which was against his will. PW-1 has further stated that on 02.01.2016, she was taken to Psychiatrist Dr. V.P. Bajpai and thereafter referred to Dr. Prakash Narayan Shukla, Raipur. On 08.01.2016, the wife was admitted to the Psychiatrist Centre, Raipur, where during examination, she admitted the fact that she was suffering with Hysteria disease prior to her marriage. He has further deposed that the wife also threatened the husband and his family members to falsely implicate in a criminal case. The husband has proved the marriage card as Ex.P/1C, medical prescription of the wife as Ex.P/2C and P/3C, written complaint filed by the husband in Police Station Banki Mongra as Ex.P/4C against his brother-in-law, namely Prabhu Sharma regarding threat, and information of non-cognizable offence by Police Station Banki Mongra as Ex.P/5C. 13. The husband has proved the marriage card as Ex.P/1C, medical prescription of the wife as Ex.P/2C and P/3C, written complaint filed by the husband in Police Station Banki Mongra as Ex.P/4C against his brother-in-law, namely Prabhu Sharma regarding threat, and information of non-cognizable offence by Police Station Banki Mongra as Ex.P/5C. 13. Other plaintiff witnesses namely Sunder Banjare (PW-2) and Smt. Binda Devi (PW-3) have given their statements Under Order 18, Rule 4 of CPC before the Family Court and perusal of their statements would show that these witnesses also stood firm to the statement made by the husband (PW-1). 14. Smt. Priya Sharma (wife) has filed her reply/written statement to the application under Section 13(1)(i-a) of the Act of 1955 but thereafter, has not bothered to appear in Court. She has not examined herself to prove her case in defence. Even, before the Family Court, she has not appeared to defend her case and also not examined herself. It is also pertinent to note that the husband and his witnesses were not cross-examined by the wife. Therefore, their statements remain un-rebutted. 15. The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and explained by the Hon'ble Supreme Court in case of Laxmibai (Dead) through LRs. and Another vs. Bhagwantbuva (Dead) through LRs. and Others, AIR 2013 SC 1204 observing as follows: “31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.” 16. The Hon'ble Supreme Court in case of Muddasani Venkata Narsaiah (Dead) through Legal Representatives vs. Muddasani Sarojana, (2016) 12 SCC 288 has held thus: “15. Moreover, there was no effective cross-examination made on the plaintiff’s witnesses with respect to factum of execution of sale deed, PW-1 and PW-2 have not been cross examined as to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to put one’s own version in cross-examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal vs. Debnath Bhagat, AIR 1963 SC 1906 . This Court repelled a submission on the ground that same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the court would presume that the witness account has been accepted as held in Chuni Lal Dwarka Nath vs. Hartford Fire Insurance Co. Ltd. AIR 1958 P&H 440 .” 17. In the instant case, when the doctor is not examined by the husband to prove the fact of ailment, it was difficult to believe that the wife was suffering with schizophrenia disease before the marriage, which was not curable. As per the statement of husband, wife was trying to commit suicide many a time and she was also using intoxicating substances and threatened to implicate the husband as also his entire family members in criminal case and such behaviour/conduct on the part of wife clearly shows that the cruelty was meted out to the husband. 18. As per the statement of husband, wife was trying to commit suicide many a time and she was also using intoxicating substances and threatened to implicate the husband as also his entire family members in criminal case and such behaviour/conduct on the part of wife clearly shows that the cruelty was meted out to the husband. 18. Order sheets of the Family Court would go to show that ample opportunities were given to the wife for her appearance and to take part in Court proceedings, but she did not choose to appear before the Family Court. The wife was very well acquainted about the case pending before the Family Court, for which, she received interim maintenance of Rs. 1,500/- per month along with Rs. 200/- towards conveyance expenses for the dates fixed for hearing. 19. It is important to say that the cruelty is a question of fact and not law. In matrimonial disputes between husband and wife (with or without their in-laws), behaviour, act and nature, etc. with regard to cruelty depend upon the facts and circumstances of each case. It is very surprising to note that Family Court has not discussed the fact about cruelty inflicted by such conduct of wife. The finding of the Family Court has simply recorded that the husband has not produced reasonable and sufficient evidence regarding physical and mental cruelty by wife to husband, and Family Court was not even bothered to analyze the statement of husband and his witnesses which is not rebutted by the wife. 20. On complete analysis of the above mentioned facts, it is clear that despite various opportunities, the wife did not choose to contest her case. When the principles and standards of mental cruelty explained by the Supreme Court in the above mentioned cases are examined in the light of facts of the present case, evidence on record shows that there is constant irresponsible conduct or abnormal behaviour of the wife as stated above, which has been proved under the Indian Evidence Act, 1872. Therefore, when the entire married life is reviewed as a whole, an inference can easily be drawn that their relationship has deteriorated to such an extent that it is extremely difficult for the husband to live with the wife. 21. Therefore, when the entire married life is reviewed as a whole, an inference can easily be drawn that their relationship has deteriorated to such an extent that it is extremely difficult for the husband to live with the wife. 21. Thus, in our considered view, the husband has proved that the wife is guilty of committing mental cruelty of such nature, which establishes a ground for dissolution of marriage. The Family Court fell in error in not appreciating the evidence in its true perspective and has recorded a perverse finding about the cruelty within the meaning of Section 13(1)(i-a) of the Act of 1955. 22. For the reasons stated here-in-above, the impugned judgment and decree is set aside and as a consequence, we allow the husband's application under Section 13(1)(i-a) of the Act of 1955 and the marriage solemnized between the husband and wife on 19.05.2015 is declared dissolved by a decree of divorce. 23. In the result, instant appeal is allowed, leaving the parties to bear their own costs. 24. A decree be drawn accordingly.