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2024 DIGILAW 968 (JHR)

Barun Kumar, S/o Koushal Kumar Singh v. Pallavi Kumari, W/o Barun Kumar

2024-11-27

PRADEEP KUMAR SRIVASTAVA, RONGON MUKHOPADHYAY

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JUDGMENT : Rongon Mukhopadhyay, J. 1. Heard Mr. Binod Kumar Dubey, learned counsel for the appellant and Mr. Prashant Kumar Srivastava, learned counsel for the respondent. 2. This appeal is directed against the judgment and decree dated 05-01-2023 (decree signed on 20-01-2023) passed by Sri Shambhu Lal Shaw, learned Principal Judge, Family Court, Hazaribag in Original Suit No. 120 of 2021 whereby and whereunder the suit preferred by the appellant for dissolution of his marriage with the respondent has been dismissed. 3. For the sake of convenience, both the parties are referred to in this judgment as per their status before the learned trial court. 4. The petitioner/husband (appellant herein) had referred a suit under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 in which, inter alia, it has been stated that the marriage of the petitioner was solemnized with the respondent on 23-06-2010 at Gandhi School Road, Gas Godam Gali, Koderma as per Hindu rites and customs. Out of the said wedlock, a son was born who is mentally retarded and his treatment is going on in Vellore. It has been alleged that from the time of the marriage, the respondent had tried to disturb the petitioner in various ways and was always averse to reside in village surroundings. The petitioner has a house situated at Nawabganj in the town of Hazaribag constructed by his parents and on account of the pressure created by the respondent and with the permission of his parents, the petitioner shifted to the said residence along with the respondent. While staying at Hazaribag, the respondent used to make unlawful demands and the petitioner, who is unemployed and dependent upon his parents, was not in a position to fulfill such demands and the same resulted in continuous torture committed by the respondent upon the petitioner. The cruelty committed upon the petitioner was instigated by the parents and relatives of the respondent who used to frequent the house of the petitioner at Nawabganj. The respondent had also filed a case being Complaint Case No. 880/2018 in which the petitioner has been granted anticipatory bail subject to deposit of Rs.1,00,000/- in favour of the respondent which he had duly complied. The respondent has also filed a case of maintenance in which the petitioner had appeared and filed his show cause. The respondent had also filed a case being Complaint Case No. 880/2018 in which the petitioner has been granted anticipatory bail subject to deposit of Rs.1,00,000/- in favour of the respondent which he had duly complied. The respondent has also filed a case of maintenance in which the petitioner had appeared and filed his show cause. It has been stated that though the petitioner and the respondent reside under the same roof, but the respondent has not allowed the petitioner to establish physical relationship with her for the last three years. The respondent has deserted the petitioner and has only lust for money. The respondent has always put pressure upon the petitioner to sever all ties with his parents. Due to the act of cruelty of the respondent, it has become impossible for the petitioner to continue with his marital ties with the respondent. 5. Despite service of notice upon the respondent, she did not appear to contest the suit and hence the suit proceeded ex-parte. 6. Based on the materials available on record, the points for determination have been encompassed as follows:- i. Whether the suit as framed is maintainable in its present form? ii. Whether the petitioner and the respondent are legally married husband and wife? iii. Whether the petitioner-husband was subjected to cruelty by respondent-wife? iv. Whether the respondent-wife has deserted the petitioner-husband? v. Whether the petitioner is entitled for relief of divorce on the ground of cruelty and desertion or any other relief/reliefs? 7. The petitioner has examined as many as four witnesses in support of his case: P.W.1 Barun Kumar is the petitioner, who has stated that his marriage with the respondent was solemnized 12 years back and out of the said wedlock, a son was born who is mentally challenged and who resides with the respondent and he is being treated for his ailment at Vellore. He has stated that the respondent is a modern lady who showed her reluctance to stay in the village as a result of which he shifted to his residence at Hazaribag along with the respondent. The respondent used to pressurize him with her unlawful demands and it was beyond his capability to meet such demands but the respondent continued with her torture of the petitioner. The respondent used to pressurize him with her unlawful demands and it was beyond his capability to meet such demands but the respondent continued with her torture of the petitioner. The respondent had kept her relatives at Hazaribag in his residence and they, along with the respondent, used to humiliate him on a regular basis. The respondent had also filed a false criminal case against him, his parents and his relatives which is at present pending. The respondent had also filed a case of maintenance which has been disposed of and he is making payment of maintenance to the respondent. Inspite of staying under the same roof, the respondent has not allowed him to establish physical relationship with her for the last four years. He has stated that the sole intention of the respondent is of getting the house of his parents registered in her name. On a Court question he has deposed that at present he resides in his ancestral home at village Lodam along with his parents. P.W.2 Kaushal Kumar Singh is the father of the petitioner who has reiterated the statement of P.W.1. On Court question he has deposed that he had gone to his Hazaribag residence about four years back. He does not have any objection if the respondent is ready to reside with the petitioner. P.W.3 Nirmal Singh is acquainted with both the sides and he has stated that after marriage the relationship between the petitioner and the respondent deteriorated. The respondent did not respect the petitioner and her parents-in-law and used to leave her matrimonial house on her whims. Though the petitioner and the respondent reside at Hazaribag under the same roof, but there is no physical relationship between them. On court question he has deposed that the respondent is residing in the house of the petitioner at Hazaribag. He had not seen the petitioner and the respondent scuffle. The mother of the petitioner had disclosed that there was no physical relationship between the petitioner and the respondent. P.W.4 Binod Kumar Singh has stated similar to that of P.W.1, P.W.2 and P.W.3. On Court question he has stated that the petitioner is his nephew. The petitioner stays at Ranchi for the last 3-4 months. The petitioner had disclosed to him that he does not have any relationship with the respondent for the last 5 years. 8. It has been submitted by Mr. On Court question he has stated that the petitioner is his nephew. The petitioner stays at Ranchi for the last 3-4 months. The petitioner had disclosed to him that he does not have any relationship with the respondent for the last 5 years. 8. It has been submitted by Mr. B. K. Dubey, learned counsel appearing for the petitioner/appellant that the petitioner, by citing various instances, have been able to substantiate the fact that he was subjected to cruelty. It has been submitted that the respondent has repeatedly humiliated the petitioner and his parents and have also occupied the house at Hazaribag which was constructed by the parents of the petitioner. The respondent has deserted the petitioner and there has been no physical relationship between them since long and this feature would also indicate about the commission of cruelty by the respondent upon the petitioner. 9. Mr. Prashant Kumar Srivastava, learned counsel appearing for the respondent has submitted that the allegation of cruelty as alleged can be construed to be the normal wear and tear in a marital relationship. It has been submitted that the respondent is residing in the house of the petitioner at Hazaribag and there are conflicting evidence about the stay of the petitioner which further demolishes his stance that he is residing under the same roof with the respondent, who inspite of the same has not allowed the petitioner to establish physical relationship with her. 10. We have heard the learned counsel for the respective parties and have also perused the trial court records. 11. The fate of the suit hinged upon the points of determination as at (iii), (iv) and (v) which was concluded to have been not proved by the petitioner. The primary focus of the petitioner seems to be the mental cruelty inflicted upon him by the respondent. “Cruelty” has not been defined in the Hindu Marriage Act, 1955 but its wider spectrum has evolved on account of the various pronouncements rendered by the Hon’ble Supreme Court. In the case of Shobha Rani versus Madhukar Reddi reported in (1988) 1 SCC 105 , it has been held as follows: “4. Section 13(1)(i-a) uses the words “treated the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. In the case of Shobha Rani versus Madhukar Reddi reported in (1988) 1 SCC 105 , it has been held as follows: “4. Section 13(1)(i-a) uses the words “treated the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It 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. It is a course of 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 to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on 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. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.” In the case of A.Jayachandra versus Aneel Kaur reported in (2005) 2 SCC 22 it has been held as under: “ 10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. 11. 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. 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. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Sobh Rani v. Madhukar Reddi, AIR 1988 SC 121 ). 12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.” 12. It is to be seen from the facts of the present case as to whether the allegations made by the petitioner would come within the definitive parameters of “cruelty” as envisaged in the aforesaid judgments. The petitioner in his application as well as in his evidence has stated about the reluctance on the part of the respondent to stay in the village and since the petitioner had already a house at Hazaribag built by his parents he had shifted to the said place along with the respondent. The petitioner has also made a vague statement that the respondent used to make unreasonable demands which he was not able to fulfil. Mere change of residence and making a vague statement about the demands made by the respondent would not, in any manner, constitute cruelty. So far as the institution of the criminal case is concerned, the same would suggest that it was the respondent who was subjected to cruelty but inspite of the same the respondent is continuing to reside at the house of the petitioner at Hazaribag along with her son who is mentally retarded. 13. As regards desertion is concerned, it has been asserted by the petitioner that the respondent despite staying under the same roof has deserted him. This claim of the petitioner seems to have been contradicted by his other witnesses including his father who has been examined as P.W.2, and who has stated that the petitioner stays with him in the village and the petitioner sometimes goes to his house at Hazaribag. P.W.3 has given a different version to the effect that the petitioner stays at Ranchi and sometimes comes to the village. P.W.3 has given a different version to the effect that the petitioner stays at Ranchi and sometimes comes to the village. The fact of the petitioner staying at Ranchi has also been reiterated by P.W.4. Apart from this contradiction, the petitioner has failed to substantiate the fact that the respondent had withdrawn from the society of the petitioner without any reasonable cause and without his permission. As such desertion has also not been proved by the petitioner. 14. The points of determination nos. (iii), (iv) and (v) have therefore, been rightly decided by the learned trial court in favour of the respondent and against the petitioner. We do not find any reasons to differ with such findings and consequently, we dismiss this appeal. 15. Pending I.A.s, if any, stands closed.