cruelty ground for Divorce under hindu marriage act.

 

cruelty ground for divorce under hindu marriage act.

 Before the trial Court, on the side of the petitioner/wife, she has examined herself as PW.1 and marked 4 documents as Exs.P1 to P4 and on the side of the respondent/husband, he has examined himself as RW.1 and marked 13 documents as Exs.R1 to R13. The Trial Court, after analysing the entire pleadings and evidence on record, came to the conclusion that the contention of the petitioner/wife that the respondent/husband has caused mental and physical cruelty to the petitioner/wife is proved and therefore the petitioner/wife is entitled for divorce on theground of cruelty. The Trial Court has further held that the petitioner/wife is entitled for permanent alimony of Rs.5 lakhs from the respondent/husband. Aggrieved with the above said order, the respondent/husband has preferred this appeal.
21. Per contra, the learned counsel for the petitioner-wife has submitted that the petitioner has alleged several incidences of cruelty in the petition and the petitioner has deposed to prove the same and since the above said incidences happened between the husband and wife, the petitioner-wife alone is competent to speak about the alleged cruelty and the Trial Court has correctly discussed and held that the petitioner-wife has proved the alleged cruelty and granteddivorce on the ground of cruelty and also the permanent alimony awarded by the Trial Court is just and reasonable and no need to interfere with the above said findings of the Trial Court.
24. The learned counsel for the appellant/respondent has relied on the following decisions:
“1. DR.N.G.DASTANE Vs. MRS. S. DASTANE (AIR 1975 SC 1534)
2. P.ABIRAMI Vs. D.E. TAMILARASAN (2012 (2) CTC 607) and
3. SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464)”
and contended that the burden of proof lies only on the petitioner to establish her case and also contended that mere trivial irritations, quarrels and normal wear and tear of married life, which happens in day to day life would not be adequate for grant of divorce on the ground of mentalcruelty and the petitioner has not pleaded with material particulars like date and month and also not pleaded and proved the specific acts of cruelty and therefore the petitioner-wife is not entitled to the relief of divorce on the ground of cruelty.
“74. …. (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 mentalcruelty. ….”
In the above said decision, the Honourable Supreme Court has held that 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.
29. In the instant case, the petitioner-wife has filed petition for divorce on the ground ofcruelty and therefore as per the law laid down by the Honourable Supreme Court in the above decision relied on by the respondent/husband, the petitioner/wife has to prove the alleged incidences of cruelty by adducing reliable evidence.
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IN  THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :      16 .8.2012

CORAM:


THE HONOURABLE  MR.JUSTICE  C.NAGAPPAN
and
THE HONOURABLE  MR.JUSTICE  R.KARUPPIAH


C.M.A No.887 of 2010
and
MP.No.1 of 2010
---

A.Sukumar     .. Appellant/Respondent
 
       Vs.

K.S.Chitra     .. Respondent/Petitioner

 Prayer:  This Civil Miscellaneous Appeal is preferred against the fair and decretal order, dated 27.10.2009, passed  in  F.C.O.P.No.918 of 2003 on the file  of  the  Principal  Family Court, Chennai.   

  For Appellant            :   Mr.S.Soundararajan
          for  Mr.K.S.Natarajan
 
  For Respondent         :   Mr.D.J.Venkatesan  
  
          ----

JUDGMENT
R.KARUPPIAH,J.
This Civil Miscellaneous Appeal is directed against the fair and decretal order, dated 27.10.2009, passed in F.C.O.P.No.918 of 2003 on the file of the Principal Family Court, Chennai. The respondent in the petition is the appellant herein. In this Judgment, for the sake of convenience, the parties are referred to as arrayed in the petition.
2. The respondent/petitioner, who is the wife of the appellant, has filed petition for divorce on the ground of cruelty under Section 13(1)(i)(a) of the Hindu Marriage Act, 1955 and also for permanent alimony of Rs.10 lakhs.
3. Briefly, the case of the petitioner/wife is that the marriage between the petitioner and the respondent was solemnised on 26.1.1996 according to Hindu rites and customs and out of wedlock, a daughter viz. Varshini, aged 6 years and a son viz. Sanjay, aged 1 = years, were born. The respondent is employed as Reservation Clerk in Southern Railway and the petitioner is employed as Clerk in Indian Bank, Perambur.
4. According to the petitioner, at the time of marriage, the respondent’s father informed that all his sons were settled in life and they were all living in their own house and on believing the abovesaid fact, the petitioner’s parents consented for the marriage, but his elder brother Kirubakaran, who was married and having children, was unemployed and the entire family was depending upon the respondent and the respondent’s father had chosen the petitioner in the interest of her income from employment. Further, the respondent’s father and brother insisted the petitioner and the respondent to vacate the house since they wanted to rent out that portion and to utilise the rental income for the said Kirubakaran’s family.
5. It is further stated in the petition that the respondent raised loan and purchased house at No.49, Janagiram Reddy Colony, Villivakkam and as there was insufficiency of funds to purchase the house, he forced the petitioner to collect money from her parents and he had beaten up the petitioner black and blue everyday for not asking money from her parents. The petitioner has further stated that the respondent went to the extent of dashing the face and head of the petitioner on wall by holding her hair in his hands and unable to bear the torture, the petitioner requested her parents, who had helped her by giving Rs.1 lakh from their pension. It is further stated that the petitioner was not even permitted to see or handle the pass-book or cheque books and her jewelleries in the bank locker maintained by the respondent and thus the petitioner was subjected to cruelty both physically and mentally by the respondent.
6. It is further stated in the petition that after vacating from own house, the respondent’s father constructed shops in the building and arranged for permanent income to the said Kirubakaran and for those construction, the respondent, his father and brother jointly humiliated the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner severely and also the respondent’s father and brother threatened the petitioner in indecent manner even in the presence of the respondent.
7. The petitioner has further averred in the petition that the respondent had behaved brutally in the sexual life and he used to wake up the petitioner during mid night and had violent sex with her and when the petitioner refused or expressed her tiredness due to over work, the respondent kicked and assaulted the petitioner and also blackmailed the petitioner to subject herself for violent sexual acts otherwise he will bring call girls to home and he will have sex with them in the presence of the petitioner. It is further stated that the respondent was always suspicious and teased the petitioner and also doubted each and every act of the petitioner and the respondent has refused to purchase the necessary provisions for family and also refused even to give Rs.10 extra as pocket money to the petitioner and on many occasions, inspite of ill-health and tiredness, the petitioner was not able to have a cup of coffee or tea at her working place. The petitioner has further stated that harassment and tortures were increasing day by day and the petitioner was waiting with confidence that the respondent will realise his mistakes and correct himself, but the respondent had taken advantage of the goodness and he started her teasing her through the female child by persuading the child.
8. It is further stated in the petition that on 25.4.2003, the respondent forced the petitioner for sex in the early morning and when the petitioner was not willing, he assaulted her severely and threw her out from the matrimonial home by saying that she was not useful for his sexual life and she has to bring Rs.2 lakhs from her parents, otherwise he will not accept her and therefore the petitioner was living with her parents.
9. The petitioner has further stated that on 27.4.2003, when the petitioner was standing in Villivakkam Railway Station, the respondent shouted at her in most indecent manner by using unparliamentary words and hence the petitioner returned her home and took her brother and escorted her to reach her work place and on the same day, after the petitioner left the house, the respondent’s father and brother entered her parents’ house and abused them in the filthy language and threw their chappals on the petitioner’s parents. While the petitioner’s maternal uncle tried to prevent the situation, he was assaulted by the respondent’s father and brother and hence the petitioner lodged police complaint on 28.5.2003 with W-5 All Women Police Station, Anna Nagar, Chennai which has been proved futile and therefore the petitioner has filed this petition to grant a decree of divorce dissolving the marriage between the petitioner and the respondent and also to grant permanent alimony of Rs.10 lakhs for children.
10. The respondent-husband has filed detailed counter and denied the averments in the petition and stated that there are no sufficient grounds for the grant of divorce and according to Hindu Law, marriage is a sacrament and the relationship of the husband and wife cannot be severed on such flimsy and frivolous allegations. According to the version of respondent, the marriage was held only after enquiring about status of the respondent by petitioner’s father. Further, respondent’s brother viz. Kirubakaran is a technically qualified person and at the time of marriage, he was working in private concern at Ambattur Industrial Estate and his earning was more than sufficient for entire family expenses and he was never depending upon the income of the respondent and therefore the allegations that Kirubakaran was unemployed and his family was depending upon the respondent are all false. The respondent has also denied the allegation that the petitioner was treated by the respondent’s elder brother Kirubakaran and his father as a money lending machine. According to respondent, his father was a retired Railway employee and he is getting pension and also agricultural income and it is sufficient for his retired life and he is not dependent either on the petitioner or respondent’s income.
11. It is further averred in the counter that at the time of marriage, the petitioner was working at Golden Rock Railway Station, Tiruchirapalli till March, 1998 and the respondent was in Chennai and during the weekends, the respondent used to visit Trichy and similarly the petitioner also used to visit Chennai to spend holidays with the respondent. It is further stated in the counter that the petitioner got transferred in April 1998 and thereafter both the petitioner and the respondent stayed together and led a happy life.
12. The respondent has further stated in the counter that the allegations made in the petition that the petitioner was beaten up by the respondent black and blue every day for not asking money from her parents and he went to the extent of dashing the face and head of the petitioner against the wall are all absolutely false and the respondent never been any rude or atrocious behaviour and in fact the respondent on several occasions has shown his love and affection towards the petitioner in abundance. The respondent has further denied the averment that the petitioner was not even permitted to see or handle the pass book, cheque book and jewellery in the bank locker and the petitioner was never restricted to operate her bank account by the respondent being an Either or Survivor account. It is further stated in the counter that the respondent’s father sold his agricultural land of 3 acres at Magarai village and out of the above said amount and also the loan of Rs. 3 lakhs from Ramakrishnapuram Building Society Limited, Villivakkam, he constructed shops near the existing building and it is false to state that the respondent availed loan for the construction and it is constructed for providing a permanent income to the respondent’s brother Kirubakaran. The respondent has also denied the allegation that the respondent’s father and brother jointly humiliated and harassed the petitioner and insisted her to ask money from her parents and the petitioner never suffered any cruelty through the respondent or by his relatives and also denied the averment that the respondent was always suspicious and teased the petitioner without any limitation. It is further stated in the counter that the respondent had never made any harassment and torture to the petitioner and also denied the allegation that the respondent teased her through female child by pampering the child.
13. The respondent has further stated in the counter that since the petitioner had an aversion in joint family, the respondent availed housing loan of Rs.3 lakhs on 5.8.1998 from his bank, Rs.75,000/- from Ind Bank Housing Limited, received Rs.50,000/- from petitioner’s mother as a hand loan and received Rs.40,000/- from his father and purchased a flat for Rs.4,65,000/- and occupied on 6.9.1998 and the petitioner and the respondent jointly lived for five months from April, 1998 to August, 1998. It is further stated that the respondent had repaid the hand loan obtained from the petitioner’s mother and his father. The respondent has further stated that he availed another housing loan of Rs.1,50,000/- during November, 2001 from his employer for alteration and interior decoration of his flat and repaid the loan amount as Rs.2,200/- pm. The respondent has specifically denied the averment made in the petition that the respondent forced the petitioner to collect money from her parents either for purchase of flat or for repayment of loan and also denied the allegation that petitioner’s parents gave Rs.1,00,000/-.
14. The respondent has further stated in the counter that the alleged incidents happened on 25.4.2003 are false and cooked up for the petition. According to respondent, on 25.4.2003, the respondent planned to go to Thiruttani Temple along with his family and he requested the petitioner to accompany them but the petitioner refused and asked him to take only her children and the respondent requested again and again but the petitioner shouted and quarreled with the respondent. It is further stated that the petitioner has no faith in Hinduism and therefore the respondent had cancelled the programme and went to his office and the petitioner also went to her office without preparing any food and on that day, she went to her parents’ house. The respondent has further stated that he tried to talk with the petitioner over phone but the petitioner refused. It is further stated that besides humiliating the respondent, the petitioner gave strict instruction to her parents not to talk with the respondent and it is clear proof for her bad behaviour with the respondent.
15. It is further stated in the counter that on 27.4.2003, being a holiday, the respondent met the petitioner at Villivakkam Railway Station on her way to office and tried to compromise but she refused to talk with him and returned to her parents’ house. The respondent has further denied the allegation in the petition that the respondent’s father and brother entered the petitioner’s parents’ house and abused them in filthy language and threw chappals on the petitioner’s parents and in fact, the petitioner’s father went to petitioner’s house to persuade the petitioner to live with the respondent and lead a happy married life. The respondent has further stated that the petitioner, on a strong influence of her parents, does not desire to continue the marital tie with ulterior motive.
16. The respondent has also stated in the counter that the petitioner lodged a false police complaint on 28.4.2003 and the police conducted enquiry and tried to compromise them but it failed since the petitioner was adamant. It is further averred in the counter that the female child S.Varshini was staying with the respondent and another male child S.Sanjay was staying with the petitioner and the petitioner never allowed to see the child and it clearly shows the amount of cruelty caused to the respondent by the petitioner. The respondent has further stated in the counter that inspite of various allegations against the respondent, the respondent is for reunion only and the petitioner is not showing any indication to live with the respondent. It is further stated by the respondent that the permanent alimony claimed in the petition is only to harass the respondent and put in mental agony and torture on the petitioner’s hands and at any rate, the claim of permanent alimony is high and not maintainable and therefore prayed for dismissal of the above said petition.
17. Before the trial Court, on the side of the petitioner/wife, she has examined herself as PW.1 and marked 4 documents as Exs.P1 to P4 and on the side of the respondent/husband, he has examined himself as RW.1 and marked 13 documents as Exs.R1 to R13. The Trial Court, after analysing the entire pleadings and evidence on record, came to the conclusion that the contention of the petitioner/wife that the respondent/husband has caused mental and physical cruelty to the petitioner/wife is proved and therefore the petitioner/wife is entitled for divorce on the ground of cruelty. The Trial Court has further held that the petitioner/wife is entitled for permanent alimony of Rs.5 lakhs from the respondent/husband. Aggrieved with the above said order, the respondent/husband has preferred this appeal.
18. The points for determination in this appeal are:
“1. Whether the petitioner-wife is entitled to divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955?
2. Whether the petitioner-wife is entitled to permanent alimony as claimed by her in the petition?”
19. Heard the learned counsel on either side and perused the entire materials on record.
20. The learned counsel for the respondent/husband has submitted that the Trial Court came to erroneous conclusion that the respondent/husband continued to demand more money from the petitioner/wife without any oral and documentary evidence and the trial Court without applying its mind and believing the evidence of petitioner-wife, without any proof to the same, has held that the respondent has doubted the act of the petitioner and also the respondent/husband had behaved brutally in sexual life and violent with her. He has further submitted that the Trial Court has failed to consider the evidence of the respondent/husband that the respondent/husband was leading marital life as dutiful husband as well as much abundant of love and affection towards his wife and children beyond doubt, but the Trial Court only based on the police complaint dated 28.4.2003 came to the conclusion that the alleged incidence of cruelty was proved by the petitioner/wife. The learned counsel for the respondent/husband has further contended that the respondent has not caused any mental or physical cruelty to the petitioner as alleged in the petition and the petitioner/wife has failed to prove the alleged incidences of cruelty by any sufficient oral and documentary evidence. He has further submitted that the Trial Court has failed to consider the fact that petitioner/wife was Central Government employee and other material facts and arbitrarily awarded Rs.5 lakhs as permanent alimony and therefore prayed for setting aside the above said order and decree passed by the Trial Court.
21. Per contra, the learned counsel for the petitioner-wife has submitted that the petitioner has alleged several incidences of cruelty in the petition and the petitioner has deposed to prove the same and since the above said incidences happened between the husband and wife, the petitioner-wife alone is competent to speak about the alleged cruelty and the Trial Court has correctly discussed and held that the petitioner-wife has proved the alleged cruelty and granted divorce on the ground of cruelty and also the permanent alimony awarded by the Trial Court is just and reasonable and no need to interfere with the above said findings of the Trial Court.
22. It is not in dispute that the marriage between the petitioner and respondent was solemnised on 26.1.1996 according to Hindu rites and customs and out of wedlock, a daughter viz. Varshini and a son viz. Sanjay were born and it is also not in dispute that both the husband and wife were employees and lived together as husband and wife till 25.4.2003.
23. The incidences of cruelty alleged by the petitioner/wife are as under:
(1) The entire family of the respondent/husband was depending upon the income of the respondent and his elder brother Kirubakaran who was married and having children was unemployed and the respondent’s father had chosen the petitioner in the interest of income from her employment and the petitioner was treated by cruelty.
(2) The respondent-husband forced the petitioner/wife to collect money from her parents when the respondent raised loan and purchased house at No.49, Janagiram Reddy Colony, Villivakkam as there was insufficiency of funds to purchase the house and the respondent/husband beaten the petitioner/wife black and blue everyday for not asking money from her parents and the respondent/husband went to the extent of dashing the face and head of petitioner/wife on wall by holding her hair in his hands and unbearable with the above said tortures, the petitioner-wife requested her parents, who had helped her by giving Rs.1 lakh from their pension.
(3) After vacating the respondent/husband and petitioner/wife from the own house, the respondent’s father constructed shops and at that time, the respondent, his brother and father have jointly humiliated and harassed the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner-wife severely so that she will collect money from her parents.
(4) the respondent had behaved brutally in sexual life and he used to wake up the petitioner during the mid-night and had violent sex with her and when the petitioner refused and expressed her tiredness due to over work, the respondent-husband kicked and assaulted his wife and also the respondent blackmailed the petitioner to subject herself for violent sexual life otherwise he will bring call girls home and he will have sex with them in the presence of petitioner-wife.
(5) The respondent was always suspicious and teased the petitioner and the respondent doubted each and every act of the petitioner and also the respondent refused to purchase necessary provisions for the family.
(6) On 25.4.2003, the respondent-husband forced the petitioner-wife for sex in the early morning and when she was not willing, the respondent assaulted her severely and threw her from matrimonial home by saying that she was not useful for his sexual life and also asked to bring Rs.2 lakhs from her parents otherwise he will not accept her.
(7) On 27.4.2003, when the petitioner-wife was standing in Villivakkam Railway Station, the respondent shouted at her in most indecent manner by using unparliamentary words and hence the petitioner-wife returned back home and took her brother to escort her to reach her work place and on the same day, after the petitioner-wife left the house, the respondent’s father and brother entered the petitioner-wife’s parents house and abused them in filthy language and threw chappals on the petitioner-wife’s parents and therefore the petitioner-wife lodged a complaint on 28.4.2003 with W.5 All Women Police Station.
24. The learned counsel for the appellant/respondent has relied on the following decisions:
“1. DR.N.G.DASTANE Vs. MRS. S. DASTANE (AIR 1975 SC 1534)
2. P.ABIRAMI Vs. D.E. TAMILARASAN (2012 (2) CTC 607) and
3. SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464)”
and contended that the burden of proof lies only on the petitioner to establish her case and also contended that mere trivial irritations, quarrels and normal wear and tear of married life, which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty and the petitioner has not pleaded with material particulars like date and month and also not pleaded and proved the specific acts of cruelty and therefore the petitioner-wife is not entitled to the relief of divorce on the ground of cruelty.
25. Per contra, the learned counsel for the petitioner-wife relied on the following decisions:
“1. SATISH SITOLE Vs. SMT. GANGA (AIR 2008 SC 3093)
2. SAPNA Vs. B. PRADEEP KUMAR (MANU/TN/0823/ 2012 = II (2012 DMC 35)
3. VISHWANATH S/O SITARAM AGRAWAL Vs. SAU. SARLA VISHWANATH AGRAWAL (MANU/SC/0513/2012) and
4. SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464)”
and would submit that the petitioner-wife has clearly stated the incidences of mental and physical cruelty in the petition and also the petitioner has testified the above said facts at the time of evidence and further submitted that the marriage between the petitioner and the respondent was solemnised on 26.1.1996 and on 25.4.2003 onwards the petitioner and respondent were not living together and the petition was filed on 14.5.2003 and it would not be possible for them hereafter to live as husband and wife unitedly and the marriage between the petitioner and the respondent had completely broken down beyond repair and therefore it is a clear case of irretrievable break down of marriage between the parties and therefore the petitioner-wife is entitled to obtain a decree of divorce and the trial Court has correctly dissolved the marriage by granting divorce on the ground of cruelty.
26. In the decision relied on by the respondent-husband in DR.N.G.DASTANE Vs. MRS. S. DASTANE (AIR 1975 SC 1534), it is observed in para No.23 as under:
“23. …. First, as to the nature of burden of proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1)(b) of the Act. “
In the above said decision, the Honourable Supreme Court has clearly laid down the principle that the burden of proof lies on the petitioner to establish his or her case and therefore the petitioner must prove that the respondent has treated her with cruelty.
27. The learned counsel for the respondent-husband has relied on another decision of a Division Bench of this Court in P.ABIRAMI Vs. D.E. TAMILARASAN (2012 (2) CTC 607), in which, para 16 reads as under:
“16. As far as the allegation of mental cruelty is concerned, as rightly submitted by the learned counsel for the Appellant, the acts alleged against the Appellant, which according to the Respondent, amounts to causing mental cruelty, have not been pleaded with material particulars like the date and month. No specific acts which amounted to causing mental cruelty have been pleaded with material particulars. Only general allegations have been made against the Appellant by the Respondent in the Petition. In the Petition before the Court below, it has not been stated that due to the Appellant’s higher education and wealth and due to superiority complex what was the nature of the behaviour and what was the activity of the Appellant, which caused mental cruelty to the Respondent. Though it has been alleged in the Petition that the Appellant failed to act as a dutiful wife from the date of marriage till the date she left the matrimonial home, the Petition is silent as to what was the duty that was not performed by her.”
In the above decision, this Court has clearly held that as far as the allegation of mental cruelty, the alleged acts have not been pleaded with material particulars like date and month and no specific acts which amounted causing mental cruelty have been pleaded with material particulars and only general allegations have been made and therefore this Court has set aside the decree of divorce granted on the ground of mental cruelty.
28. Further, in the decision of the Honourable Supreme Court in SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464), relied on by both the learned counsel for the petitioner/wife and the respondent/husband, it is held in para 74 as under:
“74. …. (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. ….”
In the above said decision, the Honourable Supreme Court has held that 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.
29. In the instant case, the petitioner-wife has filed petition for divorce on the ground of cruelty and therefore as per the law laid down by the Honourable Supreme Court in the above decision relied on by the respondent/husband, the petitioner/wife has to prove the alleged incidences of cruelty by adducing reliable evidence.
30. Admittedly, to prove the above said incidences of cruelty, on the side of the petitioner/wife, she has not examined any other witness except the interested testimony of the petitioner. Further, on the side of the petitioner, she has marked the marriage invitation as Ex.P1, marriage photo as Ex.P2 and the copy of alleged police complaint dated 28.4.2003 as Ex.P3, given by the petitioner 16 days prior to filing of the petition for divorce and copy of receipt dated 29.4.2003 as Ex.P4 and therefore the oral testimony of the petitioner alone is available to prove the alleged incidences of cruelty. On the side of the respondent/husband, to falsify the contention of the petitioner, the respondent has deposed as RW.1 and also marked Exs.R1 to R13. Admittedly, the marriage was solemnised after six months of betrothal and both the petitioner and respondent’s parents’ houses are situated nearby. Further, the petitioner herself has admitted in her evidence that the petitioner and respondent were not living along with other family members and immediately after marriage, a separate portion was allotted for them and the parents of the respondent and one brother of the respondent viz. Ravikumar were living in another portion and another elder brother of the respondent viz. Kirubakaran was living in upstair portion separately and both the petitioner and the respondent were living only for six months in the above said house and then constructed a new house and lived separately.
31. Further, it is an admitted fact that the respondent’s father viz. Appadurai is a retired Railway employee and getting his pension and also having agricultural lands. It is also revealed that the elder brother of the respondent viz. Kirubakaran is a technically qualified person and he was working in private concern at Ambattur Industrial Estate. Further the petitioner has admitted in her evidence that there is no quarrel between her and the parents of the respondent while living separately in respondent’s parents’ house and after shifting to new house also, the parents of the respondent came there and the petitioner and respondent also used to visit the respondent’s parents’ house and also admitted that even after vacating the house, only the brother of the respondent viz. Kirubakaran was living in the portion and not rented out to anybody.
32. In the above circumstances, on the side of the petitioner, she has not stated any specific incident of demanding money from the petitioner by the family members of the respondent, particularly, by the respondent’s elder brother Kirubakaran. Therefore the allegations of the petitioner that the respondent’s father has chosen the petitioner only in the interest of her income from employment and the entire family of the respondent was depending upon the income of the respondent are not proved by reliable documentary evidence except the interested testimony of the petitioner and as rightly contended by the learned counsel for the respondent, the particulars of demand of money from the petitioner like date, month etc. are not stated in the petition and also not deposed at the time of evidence by the petitioner and therefore the above said incidences of cruelty alleged by the petitioner are not proved.
33. The second and third incidences of cruelty alleged by the petitioner are that the respondent had beaten the petitioner black and blue everyday for not asking money from her parents at the time of purchasing the house at No.49, Janagiram Reddy Colony, Villivakkam and also the respondent went to the extent of dashing the head of the petitioner on the wall by holding her hair in his hands and tortured the petitioner and hence the petitioner requested her parents, who helped by giving Rs.1 lakh from the pension and the respondent and his parents humiliated the petitioner and beaten severely. To prove the above said allegations, except the oral testimony of the petitioner, there is no other oral and documentary evidence. The petitioner has not stated any reason for non-examining the parents of the petitioner to prove the above said demand of money and payment of Rs.1 lakh amount as demanded by the respondent. Further, a perusal of oral evidence of the petitioner reveals that she has deposed completely contradictory with the averments in the petition. In one place, she has stated that before registering document, as demanded by respondent, Rs.25,000/- and after that another Rs.25,000/- was given by her mother and Rs.50,000/- was given by her father and totally Rs.1 lakh was given and after retirement, her father had given Rs.50,000/- i.e., after 2002. The above said fact is not stated in the petition. The same petitioner had again deposed contrary to the above said fact that at the time of purchase of the above said house, the father of the petitioner has not given any amount and only after retirement, he has given amount to the respondent. Admittedly, the above said flat purchased in the year 1998 and the father of the petitioner was retired only in the year 2002 and hence out of retirement benefits, Rs.1 lakh was given to purchase flat is proved as false. The parents of the petitioner alone are competent persons to speak about the facts but they were not examined by the petitioner. Therefore a perusal of oral testimony of the petitioner reveals that the petitioner has falsely deposed about the demand of money as alleged in the petition. The learned counsel for the respondent has further submitted that in the year 1998, the flat was purchased for Rs.4,65,000/- by availing housing loan for Rs.3 lakhs on 5.8.1998 from respondent’s bank under the capacity of an employee and to prove the same, Ex.R2 loan sanction letter has been marked and the respondent has availed Rs.75,000/- from Ind Bank Housing Limited on 17.8.1998 and to prove the same, Ex.R3 was marked and the petitioner’s mother gave hand loan of Rs.50,000/- and the respondent’s father gave hand loan of Rs.40,000/- and the respondent has repaid the hand loan of the petitioner’s mother and also the respondent’s father on instalment basis. The oral and documentary evidence adduced by the respondent reveal that the allegation of the petitioner that Rs.1 lakh was paid for purchase of the above said flat is false and therefore the alleged second and third cruelties are not proved.
34. With regard to fourth and fifth incidences of cruelty are concerned, except the oral testimony of the petitioner, no other evidence was adduced to prove the above said allegations. The learned counsel for the petitioner would contend that the above said incidences happened between the husband and wife and therefore the petitioner alone is competent to speak about the said fact. Per contra, the learned counsel for the respondent has submitted that if really the above said incidences happened, certainly the petitioner would have informed her parents or relatives or co-workers, but in this case, except the petitioner nobody was examined to prove the above said allegations.
35. Further, the petitioner has stated in her evidence that the respondent assaulted the petitioner and caused injuries and taken treatment in the hospital but she has not produced any document and not examined the doctor or parents of the petitioner or neighbour to prove the above said incident. It is further contended that the petitioner was forced to collect money from her parents and the respondent has beaten black and blue everyday for not asking money from her parents and also alleged that the respondent, his brother and father have jointly humiliated and harassed the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner to collect money from her parents. The above allegations are all not proved by adducing reliable evidence. Therefore the fourth and fifth incidences of cruelty are not proved by the petitioner as rightly contended by the learned counsel for the respondent.
36. With regard to sixth and seventh incidences of cruelties are concerned, except the oral testimony of the petitioner, no other evidence like parents, brother, neighbour, co-worker who are competent witnesses was adduced to prove the above said allegations. As already discussed, the marriage between the petitioner and the respondent was held on 26.1.1996 and they were living as husband and wife till 25.4.2003. During the above said period, no complaint of any harassment or any complaint to the police was filed and therefore as contended by learned counsel for appellant/respondent the above said allegations have been made in the petition only for filing the petition for divorce and therefore the above said sixth and seventh cruelties are also not proved.
37. The Trial Court, only relying on the oral testimony of the petitioner, who is interested witness, granted divorce as if the alleged incidences were proved. The Trial Court has not considered the contentions of the respondent and the oral and documentary evidence adduced on the side of the respondent to disprove the contentions of the petitioner. Therefore, a careful reading of oral and documentary evidence adduced by both sides reveal that the petitioner has not proved the alleged incidences of cruelty by reliable oral and documentary evidence, but the Trial Court has wrongly held that as if the petitioner has proved the alleged incidences of cruelty.
38. At the time of argument before this Court, the learned counsel for the petitioner has contended that the marriage was held on 26.1.1996 and from 25.4.2003 onwards both husband and wife were not living together and therefore the marriage between the petitioner and the respondent has completely broken down beyond repair and it is a clear case of irretrievable break down of marriage between the parties and on that ground, he prayed for divorce. To substantiate the above said contention, he relied on two decisions as already stated. In the decision reported in SATISH SITOLE Vs. SMT. GANGA (AIR 2008 SC 3093), the Honourable Supreme Court has observed in para 12 as under:
“12. In the said circumstances, following the decision of this Court in Romesh Chander’s case (supra) we also are of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved, subject to the appellant paying to the respondent a sum of Rupees Two lakhs by way of permanent alimony. In addition, the appellant shall also pay the costs of this appeal to the respondent assessed at Rs.25,000/-. The appeal is disposed of accordingly.”
39. As rightly contended by the learned counsel for the respondent, the Honourable Supreme Court has exercised the power under Article 142 of the Constitution and held that since for 14 years the appellant and respondent lived separately and all attempts for re-union failed, the marriage has been broken down irretrievably and dissolved the marriage in the above decision.
40. In another decision in SAPNA Vs. B. PRADEEP KUMAR (MANU/TN/0823/ 2012 = II (2012 DMC 35), relied on by the learned counsel for the petitioner, this Court also held that the marriage between the wife and husband has completely broken down beyond repair and it is clear case of irretrievable break down of marriage between the parties and therefore granted divorce.
41. In the instant case, the marriage was held on 26.1.1996 and both the respondent and petitioner were living together till 25.4.2003 as husband and wife and out of the said wedlock, they have two children. On the side of the petitioner, she has not proved the fact that the marriage has broken down irretrievably and on that ground alone the petitioner is not entitled to divorce.
42. From the above discussion, we are of the view that the petitioner/wife has not proved the alleged incidences of cruelty by her husband by adducing reliable evidence and the Trial Court has erroneously held that the alleged incidences of cruelty were proved and granted divorce and therefore the above said order of the Trial Court on the ground of cruelty is liable to be set aside.
43. We are also of the considered view that the petitioner wife is not entitled to any amount as permanent alimony since the petition filed by the petitioner/wife for divorce is not maintainable as already discussed in earlier paragraphs. Therefore the petitioner is not entitled for permanent alimony as prayed for in the petition and we answer the points accordingly.
 44.  In the result, the Civil Miscellaneous Appeal is allowed and the order and decretal order dated 27.10.2009 passed by the          Trial Court in F.C.O.P.No.918  of 2003  are set aside and the petition in  F.C.O.P.No.918  of 2003  is dismissed.   Considering the relationship of the parties, there shall be no order as to costs.  Connected  MP.No.1 of 2010 is  closed.

           (C.N.J.)          (R.K.J.)
         16.8.2012
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Wednesday, March 2, 2011

Divorce on Cruelty Grounds in India

Grounds For Divorce in India.

In so many Judgments the Hon”ble Supreme Court and Hon”ble High Court has dissolved the marriage on the grounds of cruelty.

for example if the girl has filed a false complaint against the whole family members of the husbands and if the concerned magistrate has discharged the family members in the case of 498a IPC then its a cruelty upon the husband and good grounds for dissolved the marriage.

please see the recent judgment passed by the Hon”ble Delhi High Court in the matter of

See the whole Judgment:

MAT APP No. 98/2010 Page 1 of 11
IN THE HIGH COURT OF DELHI AT NEW DELHI
MAT APP No. 98/2010
Judgment delivered on: 19.11.2010
Smt. Nitu Aggarwal ….. Appellant
Through: Mr.Rajiv Shukla, Adv.
Versus
Sh.Gireesh Gupta ….. Respondent
Through: Mr.Gyan Prakash, Adv.
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J. Oral:
*
1. By this appeal filed under Section 28 of the
Hindu Marriage Act, 1955 the appellant seeks to challenge
MAT APP No. 98/2010 Page 2 of 11
the judgment and decree dated 27.4.2010, passed by the
learned Additional District Judge, Delhi, whereby a decree
of judicial separation was passed.
2. Brief facts of the case relevant for deciding the
present appeal are that the parties got married on 5.11.03
at Noida according to Hindu rites and ceremonies and a
female child was born out of wedlock on 14.9.04. The
matrimonial relations between the parties were stained
right from the very beginning of their married life and
distressed by the behaviour of the appellant, the respondent
filed a petition under section 10 of the Hindu Marriage Act,
1955 for a decree of judicial separation on the ground of
cruelty which vide judgment dated 27.4.10 was granted.
Feeling aggrieved with the same, the appellant has filed the
present appeal.
3. Mr. Rajiv Shukla, counsel for the appellant
submits that the learned trial court has wrongly assumed
that the appellant had consumed some poisonous substance
with a view to commit suicide. The contention of the
MAT APP No. 98/2010 Page 3 of 11
counsel for the appellant is that the respondent used to
compel and force the appellant to consume certain
medicines under the pretext that the same were good for
her health and for the child in the womb. Counsel further
submits that the respondent also failed to prove on record
that an attempt of suicide by the appellant was made with
a view to coerce the respondent to accede to any of her
demands and in the absence of any such assertion on the
part of the respondent, no logic or rationale behind the
alleged attempt of suicide by the appellant could be
established by the respondent. Explaining the contradiction
on the part of the appellant in the FIR lodged by her under
Section 498A/406/34 IPC, counsel submits that even if the
appellant in the said FIR took a stand that the respondent
had given her something to drink, the same will not make
any difference vis-à-vis her stand in the matrimonial
proceedings where she had stated that the respondent used
to administer some medicines. Counsel thus submits that
there was a minor variation in the stand of the appellant
which would not amount to any kind of self contradiction on
MAT APP No. 98/2010 Page 4 of 11
her part. Counsel thus states that there is clear infirmity and
perversity in the findings of the learned trial court on this
aspect and the same should be set aside.
4. Assailing the impugned judgment on another
ground, counsel submits that the learned trial court has
wrongly observed that the implication of the relatives of the
respondent is in itself an act of cruelty against the
respondent. The contention of the counsel for the appellant
is that the mere fact that the said relatives were not charge
sheeted by the police would not show that the allegations
leveled by the appellant against the relatives of the
respondent were false. The contention of the counsel is
that at the stage of framing of charges, it would be for the
concerned Criminal Court to see whether based on the
allegations leveled by the appellant in her criminal
complaint such relatives are required to be proceeded
against or not.
5. Counsel for the respondent on the other hand
refutes the submissions made by the counsel for the
MAT APP No. 98/2010 Page 5 of 11
appellant and submits that the present appeal deserves to
be dismissed at the admission stage itself as the appellant
has failed to point out any material illegality or perversity in
the order passed by the learned trial court.
6. I have heard learned counsel for the parties.
7. The petition under Section 10 of the Hindu
Marriage Act was preferred by the respondent husband so
as to seek a decree of judicial separation from the appellant
on the ground of cruelty. The marriage between the parties
was solemnized according to Hindu rites and ceremonies on
5.11.2003 and both the parties are well educated
academically. One of the allegations leveled by the
respondent against the appellant is that the appellant had
consumed some poisonous drink on 18.8.2004 and her
condition became very critical in the morning of 18.8.2004
and she was immediately taken to Kailash Hospital, Noida
and it is only on account of the timely action taken by the
respondent and his parents that life of the appellant and
the unborn child could be saved. It is an admitted case of
MAT APP No. 98/2010 Page 6 of 11
the parties that subsequent to the filing of the said petition
by the respondent husband the appellant wife got
registered one criminal complaint under Section
498A/406/34 IPC vide FIR No. 498/2005 not only against
the respondent but his parents and some other relatives as

well. Some of the relatives implicated by the appellant in the
said complaint case were the residents of far off places like
Saharanpur and Baroda. It is also an admitted case of the
parties that the relatives of the respondent were not chargesheeted
by the police as no incriminating material was
found against them during the course of investigation. The
respondent has taken this false implication of his relatives
on the part of the appellant as a ground of cruelty. Learned
trial court has also granted decree of judicial separation in
favour of the respondent and against the appellant taking
the said two grounds clearly establishing the cruel conduct
of the appellant towards the respondent. Before the learned
trial court as well as before this court the appellant has
failed to disclose as to what kind of medicines were being
administered by the respondent to her during the stage of
MAT APP No. 98/2010 Page 7 of 11
pregnancy on the pretext of the same being good for her
health and that of the unborn child. It is incomprehensible
to accept the argument that the appellant who is a well
qualified lady having a degree of Chartered Accountancy
and Company Secretary would take the medicines without
even knowing what kind of medicines she was taking. The
appellant has also clearly taken a contradictory stand in
her criminal complaint, wherein she stated that she was
given something to drink by the respondent and his parents
on the pretext that it is good for her pregnancy. The
appellant has also not denied the fact that she was admitted
to Kailash Hospital in the morning of 18.8.2004 where she
was treated after having consumed some poisonous
substance. It is also not in dispute that the appellant did not
lodge any police complaint against the respondent or his
parents complaining about administration of some
poisonous medicines by her husband or his parents. The
learned trial court has duly taken into consideration all
these circumstances into account and thus has arrived at a
finding that such an attempt by the appellant to commit
MAT APP No. 98/2010 Page 8 of 11
suicide is an act of cruelty on her part upon her husband.
8. The concept of cruelty is of wide amplitude and has not
been defined in the act. The Apex Court through various
judicial pronouncements has explained the concept and
scope of cruelty. It would be useful here to refer to the
judgment of the Apex Court in the case of A. Jayachandra
vs. Aneel Kaur AIR 2005 SC 534 where it was held as
under:
“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. 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.
MAT APP No. 98/2010 Page 9 of 11
13. The Court dealing with the petition for divorce on the ground
of cruelty has to bear in mind that the problems before it are
those of human beings and the psychological changes in a
spouse’s conduct have to be borne in mind before disposing of
the petition for divorce. However, insignificant or trifling, such
conduct may cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain pitch of
severity. It is for the Court to weigh the gravity. It has to be seen
whether the conduct was such that no reasonable person would
tolerate it. It has to be considered whether the complainant
should be called upon to endure as a part of normal human life.
Every matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations, quarrels
between spouses, which happen in day-to-day married life, may
also not amount to cruelty. Cruelty in matrimonial life may be of
unfounded variety, which can be subtle or brutal. It may be
words, gestures or by mere silence, violent or non-violent.”
Cruelty therefore is to be garnered taking the cumulative
effect of all the factors into play. The parties are well
educated and such an attempt to end her life by the
appellant would certainly cause mental agony to the
respondent. It would aggravate the case when the appellant
tried to commit suicide in the state of pregnancy. A highly
educated lady claiming that she was administered poisonous
substance which she was unaware of does not help her case.
No doubt in the petition the respondent did not give any
specific reason or cause behind such suicidal attempt but
it goes without saying that such an act even in the absence
MAT APP No. 98/2010 Page 10 of 11
of any reason certainly would constitute an act of cruelty on
the respondent husband.
9. Even on the second argument of the counsel for
the appellant, this court does not find any merit in it. The
complaint under Section 498A/406/34 IPC was lodged by the
appellant during the pendency of the said petition filed by
the respondent for judicial separation. In her complaint the
appellant roped in various relatives of the respondent which
include his uncle and aunt residing at Saharanpur and
brother and sister in law residing at Baroda. The learned
trial court is right in taking a view that false implication of
relatives who were residing at far off places from the
matrimonial home of the appellant and against whom there
are no specific allegations of cruelty in itself is an act of
cruelty by the appellant towards her husband. However, as
these relatives were not charge-sheeted by the police the
same would clearly show that the police did not find any
incriminating material against these relatives during the
investigation and this by itself is sufficient enough to show
MAT APP No. 98/2010 Page 11 of 11
that the appellant had roped in and implicated all these
relatives with vengeance to cause unnecessary harassment
to them and such act certainly would cause cruelty to the
husband with whom they are related. Implicating the
relatives with a motive to harass the relatives, residing in
different parts of the country, is nothing but a ruthless act of
harassment. Therefore, the respondent husband has
successfully proved cruelty on the part of the appellant on
both the counts.
10. In the light of the above, this court does not find
any infirmity or illegality in the findings arrived at by the
learned trial court. There is no merit in the present appeal
and the same is hereby dismissed at the stage of admission
itself.
November 19, 2010 KAILASH GAMBHIR, J

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Divorce on the ground of adultery.

The prayer of the appellant for divorce on the ground of adultery cannot be allowed as he has not disclosed the name of the person with whom the respondent is having illicit relations nor such person has been made party in the petition filed by him. Rule 10 of the Hindu Marriage (Punjab). Rules, 1956 provides that if a petition is presented by husband for divorce on the ground of adultery, then he is required to implead the alleged adulterer, a co-respondent. It has been held in Parvati v. Shiv Ram 1988 Civil Court Cases 539 (H.P.) and Mirapala Venkataramana v. Mirapala Peddiraga II(2000) Divorce and Matrimonial Cases 40 that in a petition for divorce filed by the husband on the ground of adultery, it is necessary for the petitioner to implead the alleged adulterer as co-respondent. In case the husband has not impleaded the alleged adulterer, the petition filed by him is not maintainable being non joining of the necessary party.

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Punjab-Haryana High Court
 
Pawan Kumar vs Aruna Rani on 6 November, 2007
Equivalent citations: (2009) 149 PLR 628
Author: R Madan
Bench: R Madan
JUDGMENT R.S. Madan, J.
1. This is a husband’s appeal filed against the judgment and decree dated 28.8.2001 passed by Shri K.C.Puri, the then Additional District Judge, Amritsar, in a Petition being No. 195/1992, under Section 13(1) of the Hindu Marriage Act, 1955, as amended for dissolution of marriage by a decree of divorce, which was dismissed.
2. In brief the facts of the case are that the appellant-husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce against the respondent-wife on the ground of desertion and cruelty. But later on by way of amendment, ground of adultery was also added after about a period of four years of filing of the divorce petition.
3. The marriage between the parties was solemnized on 11.5.1981 according to Hindu rites and ceremonies at Sujanpur, District Gurdaspur. Both the parties resided together as husband and wife and cohabited with each other at Amritsar. Out of this wedlock, two children, namely, Rachna and Raghurai were born. The case of the appellant that right from the inception of marriage , the conduct of the respondent was very cruel. She always used to insult and abuse him in front of his friends and relatives. Despite this, he had been tolerating the act of the respondent with a hope that better sense would prevail upon her with the passage of time and she would improve herself but all in vain. While highlighting the acts of cruelty, the appellant alleged that the respondent has been frequent visitor to her parents’ house soon after the inception of the marriage and without the consent of the appellant which was not to the liking of the appellant. It was also alleged that the respondent left the house of the appellant in January 1985 and continuously remained at her parent’s house for a period of 3-1/2 years. The appellant was also hurt by he respondent by her unbearable words who used to state that she was married against her wishes and she does not like to keep martial relationship with him. It was alleged that the respondent stayed for 7/8 days soon after the marriage with the appellant and then went back to her parents’ house from where she returned after 1-1/2 months.
4. On 8.7.1988 the father and brother of the respondent gave a writing in which it was mentioned that she had left the house of the appellant 3-1/2 years back leaving behind the children at the mercy of the appellant. During this period, her attitude and conduct was worst then before and she refused to share bed with him. The appellant had failed a petition for divorce on 13.2.1990 in the court of Additional District Judge, Amritsar and notice was given to the respondent for 4.4.1990. However, during the pendency of this petition, a panchayat was convened on 26.5.1990 in which an agreement was effected between the parties that the respondent should be provided a separate accommodation as well as Rs. 900/- per month as maintenance as she refused to live with him. She was given residence in House No. 3429/1, Gali Kakezian, Katra Baghian, Amritsar. The divorce petition was dismissed as withdrawn having been compromised.
5. The appellant started suspecting Ashok Kumar and Sarwan Singh employees of the police department having illicit relations with the respondent. According to the appellant, on 2.8.1992 he caught red handed Ashok Kumar with the help of his friends, namely, Sunil Kumar, Gurdial and Billa etc. and inhabitants of the Mohalla. Due to this act of the respondent, the appellant had received acute mental shock and agony on his mind. He, thus, pleaded that this incident is an act of mental cruelty as well as that the respondent is living in adultery.
6. The respondent-wife on receipt of notice of divorce petition, contested the same by filing written statement and denied all the allegations made therein. She, however, submitted that she was forced to go to her parents’ house for delivery of child as the appellant and his family members were not willing to take the responsibility for delivery charges and other expenses. She also submitted that after the birth of second child, she was thrown out of the house on the pretext of not bringing sufficient gifts. It was pleaded that all these allegations have been made against the respondent just to defame her and to create a ground for divorce. The appellant and his family members right from the inception of marriage were not happy with the dowry articles. As her parents were unable to meet their illegal demands of dowry, she was not allowed to come to the matrimonial home. It was on account of these facts that she was forced to live at the house of her parents. She also denied that the appellant ever visited the house of the respondents parents. She also denied the allegations of adultery levelled against her. Rather she submitted that Ashok Kumar is friendly to the appellant and they have shops adjacent to each other. She also denied that on 2.8.1992, Ashok Kumar was caught red handed by the petitioner, his friends and inhabitants of the mohalla with her. At the end, she pleaded that the appellant cannot be allowed to take a advantage of his own wrongs.
7. Replication was filed by the appellant and controverted the averments made in the written statement and reiterated the facts set out in the divorce petition.
The trial Court framed the following issues:
1. Whether the marriage between the parties is liable to be dissolved on the grounds mentioned in the divorce petition? OPP
2. Relief.
8. In order to prove his case, the appellant examined AW1 Rajesh Sehgal, AW2 Gurdial Billa, AW3 Krishan Lal, AW4 Sunil Kumar, AW5 Kuldip Rai and himself appeared as AW6. The respondent examined RW1 Amar Nath, RW2 Tilak Raj Gupta, RW3 Varinder Kumar, RW4 Darbari Lal, RW5 Yashpal, and herself appeared as RW6. Exhibit AX/1 is a statement of Amar Nath, AX/2 is the copy of the statement of Aruna Kumari made in the complaint filed by her on 12.8.1992 under Sections 354/452 I.P.C. etc against her husband (appellant). AX/3 is a compromise arrived at between Aruna Kumari and Pawan Kumar on 26.3.1990 with respect to providing maintenance at the rate of Rs. 900/- per month and separate accommodation. Mark A to E are the receipts with regarding to receipt of maintenance. Exhibit AX/7 is the undertaking given by the respondent that she will not file petition under Section 125 C.P.C. to claim maintenance in case the appellant sent money order and she will not harass him by summoning him for non-payment of maintenance. Exhibit AX/9 is the copy of the complaint filed by the respondent under Sections 354/452 I.P.C. Exhibit AZ is the order of framing charges against the appellant. Exhibit RX is a deed of pardon written by Pawan Kumar wherein he has given assurance that he will not file false complaints against Yashpal. Exhibit RW6/1 is the order passed in a petition filed by the appellant against the respondent which was the result of compromise arrived at between the parties. Exhibit RW6/5 is the copy of statement given by Aruna Kumari respondent in a petition under Section 125 Cr.P.C. Exhibit RW6/6 is the copy of statement of Aruna Kumar made during examination-in-chief and RW6/7 is her cross-examination.
After due analysis and appreciation of evidence led by the parties, the trial court dismissed the petition, holding that the appellant had failed to prove all the three grounds i.e. cruelty, desertion and adultery on which the decree of divorce against the respondent was sought. He, thereafter, came up in appeal to this Court.
I have heard the learned Counsel for the parties and have carefully gone through the record.
9. Learned Counsel for the appellant contended that entire averments made in the petition with respect to acts of cruelty, desertion and adultery have been proved against the respondent. The learned trial Court ignored the evidence led by the appellant in this regard and has not appreciated the same. It is admitted by the respondent that she remained at her parent’s house for about 3-1/2 years and the appellant was not allowed to visit the house of his in-laws. In this way, the husband was deprived of his right to enjoy the matrimonial life by causing mental cruelty and desertion. In this connection, learned Counsel referred to Kanwaljit Singh Pannu. v. Smt. Parveen 2006(1) Civil Court Cases 212 (P&H), wherein it was held that, “desertion means withdrawing from the matrimonial obligation i.e. not permitting or allowing co-habitation between the parties.”
10. Learned Counsel for the appellant submitted that due to cruel behaviour and attitude of the respondent, who used to insult and abuse the appellant, her brother admitted all her guilt and gave it in writing on 8.7.1988. When she refused to live with the appellant a panchayat was convened for resolving the dispute and an agreement was effected before the panchayat between the parties that she will live separately and will be given Rs. 900/- per month as maintenance by the appellant. This act of the respondent for not living with the appellant is itself a ground for desertion.
11. Learned Counsel for the appellant further submitted that on 2.8.1992, the respondent was found in the company of Ashok Kumar son of Satpal and Sarwan Kumar in the presence of his friends Sunil Kumar, Gurdial Billa and inhabitants of the mohalla. The appellant had received acute shock and mental agony due to this incident which is sufficient for grant of divorce on the ground of adultery. Instead of feeling ashamed of her this act, the respondent filed complaint under Sections 354/452 I.P.C. etc. against him in the court of JMIC levelling allegations of tress-pass, molestation, etc. It is not disputed that the parties are residing in the same vicinity but in the different house. The appellant thereby deprived of his matrimonial rights. He has been a victim of cruel behaviour right from the date of inception of marriage. He submitted that once a wife filed a false criminal complaint against his husband, this itself means cruelty and the husband is entitled to the decree of divorce. Reference was made to G.V.N. Kameswara Rao v. G. Jabilli 2002(2) Supreme Court Cases 296, wherein it was held that, “traumatic experiences suffered by complainant spouse as a result of the persistent non-cooperation and hostile attitude of the respondent spouse, can be included in the’ expression “cruelty”. It was also held that, “false police complaint and consequent loss of reputation and standing in society at the instance of one’s spouse, would amount to cruelty.”
12. Learned Counsel for the appellant further submitted that the parties are living separately from each other which means that there is an irretrievable breakdown of marriage. In this connection he placed reliance on Durga Prasanna Tripathy v. Arundhati Tripathy A.I.R. 2005 S.C. 3297:(2005)7 S.C.C. 353, wherein it was held that, “parties living separately for 14 years means that there is an irretrievable breakdown of marriage and it has been rendered a complete dead wood.”
13. Learned Counsel for the appellant further contended that once it is proved on the record that wife is living separately for the last so many years, the marriage is a broken marriage and it should be a statutory ground for divorce. He relied upon Naveen Kohli v. Neelu Kohli , wherein it was observed, “when parties are living separately for a sufficient length of time and one of them brings a petition for divorce decree, it can be presumed that marriage has broken down irretrievably. It will be against the interest of both the parties as well as against interest of the society to refuse to grant decree for divorce in such cases. Parliament recommended to pass such an amendment.”
14. Learned Counsel for the appellant submitted that it has come on the record that she had left the house of the appellant in the year 1985 and returned on 8.7.1988 when her brother gave in writing that she had left the matrimonial house as the misunderstanding cropped up between the parties and the factum of her absence from the matrimonial house for a period of three years stand admitted in this writing. It was on account of this compromise that the respondent started living with the appellant but she refused to share bed with him. This act of the respondent, according to the counsel for the appellant, even though living under the same roof and not sharing bed with the appellant, amounts to desertion.
15. On the other hand, learned Counsel for the respondent contended that it is a case where the appellant has miserably failed to prove all the three grounds for divorce i.e. cruelty, desertion and adultery. In support of his arguments, he submitted that the appellant cannot be allowed to take advantage of his own wrongs. Even if it is admitted that respondent-wife stayed at her parents’ house for a period of 3-1/2 years but the appellant never visited there to enquire about her welfare. It was on 8.7.1988 that a compromise was arrived at between the parties and the respondent started living at the house of the respondent. Therefore, the act of desertion if any stands condoned and it cannot, by any stretch of interpretation, be termed a case of desertion on the part of the respondent.
16. Learned Counsel for the respondent also submitted that previously the appellant has filed a petition for divorce against the respondent, despite the fact that she was residing at his house. A compromise was effected on 26.3.1990, as a result of which the petition was withdrawn on 4.4.1990. Thereafter, the appellant filed the present petition against the respondent on 18.11.1992 and sought amendment in the main petition in the year 1996 for incorporating the ground of adultery. As per the Rule 10 of the Hindu ‘ Marriage (Punjab) Rules 1956, the adulterer is a necessary party and petition filed on the ground of adultery cannot proceed without impleading him as a party. Reference was made to D. Thomas v. Tara , wherein it was held that, “In fact, the prescription in Section 11 is a mandate which cannot be avoided by a husband seeking divorce on the ground of adultery. Where no such person, though known to the plaintiff, is made a party, the suit for dissolution is not maintainable in law. “Reference was also made to Ram Kumar @ Ramender Kumar v. Smt. Raksha @ Galabo , wherein it has been held as under:
Even otherwise, the prayer of the appellant for divorce on the ground of adultery cannot be allowed as he has not disclosed the name of the person with whom the respondent is having illicit relations nor such person has been made party in the petition filed by him. Rule 10 of the Hindu Marriage (Punjab). Rules, 1956 provides that if a petition is presented by husband for divorce on the ground of adultery, then he is required to implead the alleged adulterer, a co-respondent. It has been held in Parvati v. Shiv Ram 1988 Civil Court Cases 539 (H.P.) and Mirapala Venkataramana v. Mirapala Peddiraga II(2000) Divorce and Matrimonial Cases 40 that in a petition for divorce filed by the husband on the ground of adultery, it is necessary for the petitioner to implead the alleged adulterer as co-respondent. In case the husband has not impleaded the alleged adulterer, the petition filed by him is not maintainable being non joining of the necessary party.
17. In the instant case, Ashok Kumar the alleged adulterer, was not impleaded as a co-respondent by the appellant. The allegations of adultery given were not proved on the file. Rather the respondent has taken a specific stand that said Ashok Kumar is a friend of the appellant who was forcibly pushed in the room of the respondent to defame her in the society and to. create a ground of divorce. Due to this incident, she had filed a complaint under Sections 354/452 IPC against the appellant in which the charges were framed against him and the case has not so far been disposed of. Therefore, the appellant cannot take advantage of the fact that the respondent has filed a false complaint against him. Even according to the appellant himself, the respondent was still residing in his house when compromise was effected between them. AW1 Rajesh Sehgal categorically stated that when he visited the house of the appellant, his mother was ill and when the appellant asked the respondent to prepare tea, to which she refused to do so and there was exchange of words between the parties. This kind of incident cannot be termed as cruelty because the respondent wife was looking after her ailing mother-in-law, it is not possible that she would adopt hostile attitude towards the appellant. All the witnesses produced by the appellant are his friends. It is very easy for the witnesses of the appellant to toe the line of the appellant as per his wishes. In order to know the wear and tear in the family life, it is the members of the family who could be the best witnesses to throw light on the matrimonial relationship of the parties. But not a single witness of the family was examined by the appellant. The respondent was serving her mother-in-law in the year 1989 and even thereafter she was residing with the appellant upto 1990 in a joint house. Therefore, it cannot be said to be a case of desertion.
18. It is a case where the respondent was forced to live separately by the appellant by way of a compromise effected on 26.3.1990 in panchayat which was consented by him, therefore, it does not lie in the mouth of the appellant to state that she has withdrawn herself from the matrimonial obligations or society of the appellant. It is the appellant who was responsible for taking advantage of his own wrongs. Throughout the matrimonial life of the parties, the appellant was trying to get rid of the respondent by levelling false allegations against her. It is not disputed that the appellant is residing in the same vicinity where the respondent is residing and paying a sum of Rs. 900/-per month as maintenance as per the consented arrangement.
19. The appellant has duly proved on the file the agreement dated 26.3.1990 vide which the earlier petition for divorce was withdrawn. It was, thereafter, that the present petition for divorce was filed on 18.11.1992 on the grounds of desertion and cruelty but the allegation of adultery was not found mentioned therein. As per his own case, the appellant caught the respondent on 2.8.1992 in the company of Ashok Kumar with the help of his friends Sunil Kumar, Gurdial and Billa. This ground was available to him on the date of filing of the petition i.e. on 18.11.1992 but he added the same by way of amendment in the petition in the year 1996 as a counter-blast to the criminal complaint filed by the respondent-wife under Sections 354/452 I.P.C. on 12.8.1992. This ground was taken to put pressure on the respondent to withdraw the complaint filed against him.
20. It is a case where the parties are living separately on account of their mutual consent and agreement and it would not amount that the marriage of the parties has broken down and decree of divorce could be granted to the appellant on the grounds of desertion and cruelty. Reliance was placed to Balwinder Pal v. Anita Kumari (2007-1)145 P.L.R. 832, wherein it was held as under:
In the instant case, it has been found from the evidence on record that the appellant-husband is not willing at all to live with the respondent-wife any more. On the other hand, respondent-wife is still willing to live with her husband. In this background, in the facts enumerated above, the appellant-husband cannot get decree of divorce relying on the theory that the marriage between the parties has irretrievably broken down. Emphasis is from the case of Dipak Kumar Sarkar v. Smt. Sima Sarkar 2005(1) H.L.R. 730. In Birbal Goswami v. Indra Devi 1997 Marriage Law Journal 415, it was found that the wife is willing to live with the husband and the husband levelled false charges to get rid of her and it was held that he cannot seek divorce on that ground and dismissal of the divorce petition was upheld. In Rupinder Kaur v. G.S. Sandhu , it was held that assuming that the marriage had broken irretrievably, breakdown of marriage is no ground to dissolve the marriage.
21. In Naveen Kohli’s case (supra), the Apex Court has recommended to the Parliament to enact the ground of irretrievable broken-down marriage as a ground for divorce. This ground at present has not so far been available in the statute. It is a case where the husband has been found guilty of levelling false allegations against the respondent but miserably failed to prove any of the three grounds on which the dissolution of marriage was sought. The case of the appellant is also hit bySection 23 of the Hindu Marriage Act and he cannot be allowed to take advantage of his own wrongs.
In the light of the above discussion, the appeal fails and is dismissed, leaving the parties to bear their own costs.

Divorce on ground of mental disorder.

 Section 13(1)(iii) provides that, the respondent suffers from incurably unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Therefore, it is clear that mere unsound mind is not a ground for divorce. It should be incurably unsound mind. Similarly, if a person is suffering from a mental disorder, that by itself is not a ground for divorce. The mental disorder should be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation to the said proviso explains the meaning of mental disorder. The expression ‘mental disorder‘ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder of disability of mind and includes schizophrenia. It is in this background when he look at the material on record, the respondent for about 15 days did not have sleep, she was dull and depressed, she was not feeling happy, she was not active as before and she was getting fearful dreams. Once, the psychiatrist gave treatment, in a span of 15 days she attained normality. Therefore, she is not suffering from any mental disorder which justifies to grant a decree for divorce.

———————————————————————————————————–

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
           Dated this the 25th day of March 2014
                         PRESENT
            The Hon'ble Mr. Justice N. KUMAR
                            AND
         The Hon'ble Mrs. Justice B.S. INDRAKALA
       Miscellaneous First Appeal No.3224/2012 (FC)

BETWEEN:

Shivajigouda,
S/o Nagappgouda, Aged about 43 years,
R/at Hosahalli Village, Anavatti - Hobli,
Taluk: Sorab - 577 413.                     ... Appellant

                (By Sri S.V.Desai, Advocate.)

AND:

Smt.Sunitha,
W/o Shivajigouda, Aged about 34 years,
C/o Kotrappagouda, Ground Floor,
Katavi Village, Telagadde-Post,
Jade-Hobli, Sorab Taluk - 577 419.              ... Respondent

      This Miscellaneous First Appeal is filed under Section
28 of Hindu Marriage Act against the judgment and decree
dated:15.06.2011 passed in M.C.No.36/2009 on the file of
Senior Civil Judge, JMFC, Soraba, dismissing the petition
filed under Section 13(1)(ia)(3) of Hindu Marriage Act for
dissolution of marriage.

       This appeal coming on for orders this day, N.Kumar J.,
delivered the following:
                                2


                        JUDGMENT
This is a husband’s appeal challenging the order passed by the Civil Judge (Sr.Dn.) & JMFC, Sorab dismissing his petition for divorce.
2. The appellant/petitioner married the respondent on 14.03.1998 according to the Hindu Custom. After marriage they resided together happily. Two sons by name Sanjay and Sandeep are born. The grievance of the petitioner/husband is that the respondent is suffering from mental disease. Because of her mental illness, she quarrels with him, attempts to assault him and hates him. This behaviour was brought to the notice of her parents. They took her back to their house and they assured that she would be alright. Before marriage itself, she was suffering from these ailments. Suppressing the same, they have performed the marriage. Petitioner also got her treated by a Psychiatrist at Shimoga. Inspite of the same, she is not as before. Thereafter, he took care of his wife with all love and affection, but because of her behaviour, it caused both mental and physical cruelty to him and therefore, he filed a petition for divorce under Section 13(1), (1a) and (3) of the Hindu Marriage Act, 1955. After service of notice, she entered appearance and filed her statement of objections. She admitted the marriage, birth of two sons, she denied that she is suffering from any mental disease. Her younger son Sandeep was not well; he was suffering for months and therefore, he was taken to her parents house and treated at Sirsi and now, he has recovered. She is in no way caused any trouble to the petitioner. Petitioner has not taken her back to his house because he has an illicit relationship with another woman. Petitioner is the head of the family. He was the chairman of the Grama Panchayat. It is he who is suffering from mental pressure. On account of the same, he has treated the respondent with mental and physical cruelty. It is the petitioner who needs treatment from a psychiatrist. For the last one year, they are living separately. Petitioner is addicted to bad habits. He has kept the eldest son away from the respondent. She is ready and willing to live with the petitioner for the sake of the children and therefore, she sought for dismissal of the petition.
3. On the aforesaid pleadings, the trial Court framed the following two issues:
(1) Whether the petitioner is entitled for divorce as prayed for in the petition?
(2) What order?
4. The petitioner in order to substantiate his claim examined himself as PW1. He also examined three witnesses as PWs 2 to 4 and produced 9 documents which are marked as Exs.P.1 to P.9. The respondent was examined as RW1. She also examined 4 witnesses as RWs 2 to 5 and produced 17 documents which are marked as Ex.R.1 to R.17.
5. The trial court on consideration of the aforesaid oral and documentary evidence on record held that the petitioner has failed to establish the cruelty as well as the mental illness of the respondent and therefore, he is not entitled to a decree for divorce. Accordingly, the petition came to be dismissed.
6. Aggrieved by the said order, the petitioner is in appeal before this Court.
7. Learned counsel appearing for the appellant assailing the impugned order contended that the documentary evidence produced by the petitioner coupled with the evidence of the doctor who treated the respondent clearly establishes the unsound mind of the respondent and therefore, the order passed by the trial Court dismissing the petition for divorce requires to be interfered with.
8. We do not find any substance in the said contention. The undisputed evidence on record discloses that after the marriage the husband and wife lived happily and two sons were born i.e., from 1998 till 2008. The first son was born in 2001 and the second son was born in 2004. Though in the pleadings the petitioner accused the respondent of attempting to assault him, in the evidence he has not spoken about the said fact. The evidence on record shows the respondent was treated in Sridhar Nursing Home. The record issued by Sridhar Nursing Home which is marked as Exs.P. 8 and 9 shows that, on 15.07.2009 she was sleepless for 15 days, she was said to be dull and depressed, she did not feel happy, she talks less, she was not active as before, she got fearful dreams. Though the doctor who treated her was not examined, the doctor in the nursing home was examined, who on the basis of the record has deposed that after her examination in the hospital, she was given medicine and she was asked to come back after 15 days. Then when she came on 15.12.2009 she was examined and it was found that she had become normal. Therefore, no further treatment was prescribed. The doctor has also given a brief description of her physical condition, mental condition and the said evidence shows she is not suffering from any mental or physical ailment. Relying on the said legal evidence on record, the learned trial Judge rightly held that, neither the case of cruelty nor case of mental illness is made out by the petitioner/husband and therefore, he dismissed the petition. As the said finding is based on legal evidence, it cannot be found fault with. In fact, the Apex Court in the case of RAM NARAIN GUPTA vs RAMESWARI GUPTA reported in 1988 AIR 2260 has observed as under:

“10. The context in which the ideas of unsoundness of ‘mind’ and ‘mental-disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the decree of the ‘mental- disorder’. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the order. All mental abnormalities are not recognized as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would indeed, survive in law.”

9. Section 13(1)(iii) provides that, the respondent suffers from incurably unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Therefore, it is clear that mere unsound mind is not a ground for divorce. It should be incurably unsound mind. Similarly, if a person is suffering from a mental disorder, that by itself is not a ground for divorce. The mental disorder should be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation to the said proviso explains the meaning of mental disorder. The expression ‘mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder of disability of mind and includes schizophrenia. It is in this background when he look at the material on record, the respondent for about 15 days did not have sleep, she was dull and depressed, she was not feeling happy, she was not active as before and she was getting fearful dreams. Once, the psychiatrist gave treatment, in a span of 15 days she attained normality. Therefore, she is not suffering from any mental disorder which justifies to grant a decree for divorce.
10. In the light of the aforesaid law declared by the Apex Court and the statutory provisions, the learned Judge of the Court below on proper appreciation of the evidence on record, rightly held that the petitioner has not made out a ground for divorce.
11. We do not see any ground to interfere with the well considered order of the Court below. Accordingly, appeal is dismissed.
Sd/-
JUDGE Sd/-

Divorce on the ground of desertion under The Hindu Marriage Act 1955

.merits of the case of the jurisdiction of the Court. Though failure to frame a issue that arises on the basis of the pleadings of the rival parties would amount to an error being committed by the Trial Court, that by itself will not be a ground to reverse the impugned judgment. It is necessary to note here that during pendency of the proceedings, the respondent had made another prayer seeking grant of divorce on the ground of desertion. Such prayer was trial permitted to be added. The parties thereafter went to and contested the proceedings. While the respondent led evidence for grant of divorce, the appellant led evidence to demonstrate that the respondent was not entitled for said relief. Therefore, the prayer for divorce was, in fact, contested as being the main relief sought in said proceedings. Further, assuming that the issue pertaining to claim for restitution of conjugal rights was framed and answered against the respondent, the same would not have resulted in dismissal of petition in view of the other prayer in the proceedings. Similarly, the nature of evidence for seeking the relief of restitution of conjugal rights and for seekingdivorce on the ground of desertion would naturally be of a distinct nature.

In said judgment, the alleged desertion took place on 19-2-1993. On 31-3-1993 the husband filed a petition for restitution of conjugal rights and in the alternate, sought a decree for divorce on the ground of desertion. In that context, it was observed that as the alleged desertion took place on 19-2-1993 and the petition was filed on 31-3-1993, no petition for divorce on theground of desertion could have been entertained as the desertion itself was for a period of less than two years. In that context, it was observed that the prayer for grant of divorce itself was not tenable in law. The aforesaid judgment does not assist the appellant in view of its peculiar facts. In the present case, the prayer for grant of divorce has been made by way of amendment on the basis of prior desertion of two years. Hence, the ratio in the aforesaid case is not applicable to the case in hand.
——————————————————————————————————
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR.




                                             
                       FIRST APPEAL NO.308 OF 1998

      APPELLANT:             Smt.   Uttara   Praveen   Thool,
                             aged 28 years, C/o Manoharrao
                             Bhavade, resident of Girad,




                                            
                             Tq.     Samudrapur,     District
                             Wardha.

                                   -VERSUS-




                               
      RESPONDENT:            Praveen S/o Bhanudas Thool, age
                             37   years,    Occupation-Service,
                             resident    of   House    No.4/44.
                 ig          Raghuji Nagar, Nagpur.



      Mrs. V. Thakre Advocate for the appellant.
               
      Mrs. R. S. Sirpurkar Advocate for respondent.


             CORAM: B.P.DHARMADHIKARI AND A.S. CHANDURKAR,JJ.
DATE OF RESERVING THE JUDGMENT: 20TH NOVEMBER 2013. DATE OF PRONOUNCING THE JUDGMENT: JANUARY,2014. ORAL JUDGMENT : (Per A. S. Chandurkar, J)
1. The appellant – wife has preferred the present appeal under Section 19 of the Family Courts Act 1984 being aggrieved by the judgment dated 8-6-1998 passed by the learned Judge, Family Court, Nagpur whereby the petition filed by the respondent – husband for grant of divorce has been allowed. Herein after the wife will be referred to as the appellant and the husband will be referred to as the respondent.
       f                                                          2/52

      2.             The   marriage     between        the   parties         was




                                                                   
solemnized on 2-12-1992. Out of said wedlock, the appellant gave birth to a son on 27-8-1993. According to the respondent, after the birth of said child the appellant did not return to her matrimonial home for no justifiable reason. Hence, on 22-12-1994, the respondent preferred Hindu Marriage Petition under Section 9 of the Hindu Marriage Act 1955 (hereinafter refer to as the said Act) bearing No.364 of 1994 for restitution of conjugal rights. During pendency of said proceedings, the respondent pleadings and in the alternate sought a decree for amended his divorce on the ground of mental cruelty on the basis of desertion by the appellant. The parties went to trial and on the basis of the material on record, the Family Court, Nagpur by judgment dated 8-6-1998 was pleased to allow the petition filed by the respondent and thereby passed a decree of divorce on the ground of cruelty.
3. Before considering the challenge to the aforesaid decree, it would be necessary to note the rival pleadings of the parties and also the other material on record on the basis of which the impugned decree has been passed. In the petition filed under Section 9 of the said Act, it was pleaded by the respondent that from the second month of the marriage itself, the appellant was requesting for grant of fa308.98.odt 3/52 divorce. It was stated that the appellant disliked the idea of a joint family and hence, the respondent started living separately from his mother and brother. It is further pleaded that after the birth of their son on 27-8-1993, the appellant’s father took her to their native place and since then for no justifiable reason, the appellant had deprived the respondent of her company and had failed to fulfill her obligation as wife. It was further pleaded that on 23-12-1993, the appellant along with her father, her uncle and few other persons came in a Jeep to the respondent’s place. After some talks, the appellant’s father informed the respondent that it was not possible for the appellant to live with the respondent. Despite efforts through mediators, the appellant did not return to the matrimonial home and hence, on 22-12-1994 aforesaid petition seeking restitution of conjugal rights was filed by the respondent.
4. The appellant filed her written statement below Exh.14. She denied the averments made in the petition filed by the respondent. According to the appellant, the respondent used to treat her cruelly and keep her without food for 2 to 3 days. The respondent used to beat her and abuse her. It was further pleaded that in July, 1993, the respondent had called the appellant’s mother and had demanded fa308.98.odt 4/52 Rs.4,000/- from her and threatened that if said demand was not met, the mother should take back her daughter. It is stated that on 17/18-8-1993, despite intervention of Panchas, the respondent did not listen to them due to which the appellant was forced to return to her father’s home. Despite a message being given about the birth of a child, the respondent did not accept the sweets that were sent in that regard. The respondent did not attend the ceremony that was held for naming the child.
Ultimately, on 23-12-1993 though the appellant had returned to the respondent’s house along with their child, the appellant was not permitted to enter the house in the presence of various persons. It was further pleaded that on 2-3-1994, the appellant had filed proceedings for grant of maintenance under Section 125 of the Code of Criminal Procedure and with a view to defeat the appellant’s right, the present proceedings for restitution of conjugal rights was filed. The appellant, therefore, prayed for dismissal of the proceedings.
5. During pendency of the proceedings before the Family Court, the respondent moved an application below Exh.16 to amend the petition by deleting the prayer for restitution of conjugal rights and substituting the same by the prayer for grant of divorce. The learned Judge of the Family Court by fa308.98.odt 5/52 order dated 20-5-1996 disposed of the aforesaid application by directing the respondent to file another application for seeking divorce as an alternate relief.
On 25-4-1996, the marriage Counselor submitted his report below Exh.24 in which he opined that amicable settlement between the parties was not possible.
Subsequently, the respondent moved another application below Exh.28 for amendment of the aforesaid ig petition. By said respondent made another prayer that in case it was application, the not possible to grant the relief of restitution of conjugal rights, a decree of divorce on the ground of mental cruelty be passed. The aforesaid application was filed on 13-6-1996. After considering the reply of the appellant filed below Exh.32, the learned Judge of the Family Court by order dated 19-10-1996 allowed the aforesaid application for amendment holding that the respondent was entitled to make an alternate prayer. Accordingly, the proceedings as filed stood amended in view of the aforesaid order. In view of addition of the prayer for grant of divorce, the proceedings were renumbered as Petition No.A/604/1996. The appellant amended her written statement and opposed the alternate relief sought by the respondent.
       fa308.98.odt                                                                 6/52

      6.               The     respondent         examined       himself        below




                                                                          
Exh.60, his brother-in-law – Manishankar Patil below Exh.69 and another brother-in-law Vitan Borkar below Exh.70. The appellant examined herself below Exh.74, her father Manohar Shevde below Exh.83, Shiodas Betal, her maternal uncle and one Ashok Naranje below Exh.85. On the basis of the aforesaid pleadings and the evidence led by the respective parties, the learned Judge of the Family Court recorded a finding that the appellant had treated the respondent with cruelty, that she had withdrawn from the respondent’s society without any reasonable cause and hence, the respondent was entitled for a decree of divorce on the ground of cruelty. Thus, by judgment dated 8-6- 1998, the marriage between the parties was dissolved by a decree of divorce on the ground of cruelty.
7. On behalf of the appellant – wife, it was urged by her learned Counsel Mrs. V. Thakre that the Family Court erred in granting the decree for divorce on the ground of cruelty. It was submitted that though initially the petition was filed under Section 9 of the said Act for restitution of conjugal rights, no issue in that regard was framed while deciding the said proceedings. It was submitted that by seeking restitution of conjugal rights, the respondent had condoned all earlier incidents that had occurred and hence, on said count, a decree for divorce could not fa308.98.odt 7/52 have been passed. It was further submitted that in proceedings for restitution of conjugal rights, there could not be a prayer for grant of divorce on the ground of cruelty as such pleadings were mutually destructive and prayers were opposed to each other. It was further submitted that though the statutory period of two years as contemplated under Section 13 of said Act was not complete when the initial proceedings were filed, by permitting the petition to be amended for seeking the relief of divorce, the support respondent had got over aforesaid statutory bar. In of the aforesaid submission, the learned Counsel for the appellant relied upon the following judgments.
[1] AIR 2006 Himachal Pradesh 33, Baldev Raj v.
Smt. Bimla Sharma.
[2] AIR 212 Rajasthan 8, Reema Bajaj v. Sachin Bajaj.
[3] 2000(4) Mh.L.J. 244, Sanjay Chandrakant Mehta vs. Malaben Sanjay Mehta.
[4] (2005)9 Supreme Court Cases 600, Uma Parekh alias Pinku versus Ajeet Pareek Alias Govind Pareek and others.
[5] AIR 1988 Supreme Court 839, Tejinder Kaur v.
Gurmit Singh.
[6] AIR 1990 Bombay 84, Smt. Smita Dilip Rane v.
Dilip Dattaram Rane.
       fa308.98.odt                                                                      8/52




                                                                                
      [7]    AIR 1989 Supreme Court 1477, Smt. Lata                                    Kamat

             v. Vilas.




                                                       
      [8]    AIR 2009 Andhra Pradesh 54, Lakkaraju

Pradma Priya v. Lakkaraju Shyam Prasad. [9] AIR 1975, Supreme Court 1534(1) Dr. N. G.
Dastane v. Mrs. S. Dastane. Respondent.
On the other hand, Mrs. R. Sirpurkar, the learned Counsel appearing for the respondent –
husband supported the impugned judgment. It was sought submitted that though initially the respondent had restitution of conjugal rights by filing aforesaid proceedings under Section 9 of the said Act, in view of the stand of the appellant before the Marriage Counselor that she was not ready to reside with the respondent and in view of absence of any justifiable cause assigned by the wife for living separately from her husband, the respondent was compelled to seek divorce on the ground of cruelty. It was submitted that though various allegations were made by the appellant in her pleadings as regards ill-treatment and cruelty on the part of the respondent, the same were not substantiated by leading any cogent evidence. It was urged that failure to frame the issue as regards the restitution of conjugal rights did not have the effect of vitiating the impugned judgment. It was further submitted that the parties were living separately fa308.98.odt 9/52 since August 1993 i.e. after the birth of the child and hence, the Family Court was justified in passing the decree for divorce. It was further submitted that though the appellant had pleaded that there was a demand for dowry, no evidence in that regard was led by the appellant. On the contrary, it was the appellant who was guilty of deserting the respondent for no justifiable cause and the same, therefore, entitled the respondent for grant of divorce on account of desertion resulting in cruelty. It was further breakdown of igurged that there was an marriage and both parties having been irretrievable separated for almost 20 years, they could not be expected to live together as husband and wife. By filing an additional affidavit on record, it was submitted that the respondent had contracted the second marriage on 30th of November 1998. The learned Counsel for the respondent has relied upon the following judgments in support of her submissions: [1] AIR 1992 Madhya Pradesh 105, Smt. Bhavna Adwani v. Manohar Adwani.
[2] [1999 (2) Civil JJ 65] Smt. Shashi Shah V.
Kiran Kumar Shah.
[3] 1992 Mh.L.J. 997, Kishorilal Govindram Bihani vs. Dwarkabai Kishorilal Bihani. [4] II (1991) DMC 326 Sanyogta Verma versus Vinod Verma.
      [5]    II(1985) DMC 329, Suren Chandrakant Shah





       fa308.98.odt                                                               10/52

             versus Rita Suren Shah.




                                                                         
      [6]    2012(7) ALL MR 282, Smt. Bhawna w/o

Vijaykumar Sakhare vs. Vijaykumar S/o Tarachand Sakhare.
[7] [2006(1) Mh.L.J., Durga Prasanna Tripathy vs. Arundhati Tripathy.
[8] II (2006) DMC 107 (DB)Iffath Jamalunnisa versus Mohd. Suleman Siddiqui.
[9] 2007(3) Mh.L.J. 1, Rishikesh Sharma vs. Saroj Sharma.
[10] (2007) 4 Supreme Court Cases 511, Samar Vs. Jaya Ghosh.
Ghosh [11] (2007) 4 Supreme Court Cases 548, Masooda Parveen Versus Union of India and others. She has, therefore, sought dismissal of the aforesaid appeal.
8. After hearing the respective Counsel and in view of the material on record, the following points arise for determination.
(1) Whether failure on the part of the Family Court to frame the issue pertaining to the claim for restitution of conjugal rights has resulted in vitiating the judgment? (2) Whether a decree for divorce could be sought as a relief in a petition filed under Section 9 of the said Act for restitution of conjugal rights?
fa308.98.odt 11/52 (3) Whether on an amendment permitting a prayer for grant of divorce in such proceedings being granted, the same relates back to the date of filing of the proceedings? (4) Whether decree for divorce needs to be granted on the ground that there has been an irretrievable breakdown of the marriage? (5) Whether the respondent is entitled for a decree of divorce on the ground of cruelty?
(6) What relief?
9. ig As to point no.1: The respondent had filed the present proceedings under Section 9 of the said Act seeking restitution of conjugal rights. In paragraph nos.6,9 & 10 of the petition, he had made various assertions in support of aforesaid relief. In reply thereto, the appellant had denied the claim as made by the respondent. This, therefore, gave rise to an issue pertaining to the claim of the respondent for restitution of conjugal rights. Such issue, however, was not framed by the learned Judge of the Family Court. It is, therefore, necessary to consider whether failure to frame said issue has resulted in vitiating the impugned judgment.
In this regard, the provisions of Section 99 of the Code of Civil Procedure may be noticed.
      Under     Section    99,    no     decree      can       be    reversed      or

      substantially       varied    on    account         of    any      defect    or





       fa308.98.odt                                                                     12/52

      irregularity          in     any    proceedings            not    affecting       the




                                                                               
merits of the case of the jurisdiction of the Court. Though failure to frame a issue that arises on the basis of the pleadings of the rival parties would amount to an error being committed by the Trial Court, that by itself will not be a ground to reverse the impugned judgment. It is necessary to note here that during pendency of the proceedings, the respondent had made another prayer seeking grant of divorce on the ground of desertion. Such prayer was trial permitted to be added. The parties thereafter went to and contested the proceedings. While the respondent led evidence for grant of divorce, the appellant led evidence to demonstrate that the respondent was not entitled for said relief. Therefore, the prayer for divorce was, in fact, contested as being the main relief sought in said proceedings. Further, assuming that the issue pertaining to claim for restitution of conjugal rights was framed and answered against the respondent, the same would not have resulted in dismissal of petition in view of the other prayer in the proceedings. Similarly, the nature of evidence for seeking the relief of restitution of conjugal rights and for seeking divorce on the ground of desertion would naturally be of a distinct nature.
      Such    evidence           could    not     be      overlapping.          In    these

      circumstances,              therefore,         it     is     clear       that      the





       fa308.98.odt                                                                   13/52

parties have contested the proceedings with regard to the prayer for grant of divorce, mere failure on the part of the learned Judge of the Family Court in framing the issue as regards restitution of conjugal rights would not have the result of vitiating the impugned judgment. In any event, the appellant before commencement of the evidence did not raise any grievance before the Family Court that the issue pertaining to restitution of conjugal rights had not been framed. Hence, taking an overall view of the matter, we find that the failure on the part of the Family Court in framing the issue as regards the claim for restitution of conjugal rights has not resulted in vitiating the impugned judgment. Point no.1, therefore, stands answered accordingly.
10. As to Point No.2: This takes us to consider the next point as to whether a decree for divorce could be sought as an alternate relief in a petition filed for restitution of conjugal rights. While a petition for restitution of conjugal rights is required to be filed under Section 9 of the said Act, a petition seeking divorce is required to be filed on the grounds stipulated in Section 13 of the said Act. In the present case, initially, the proceedings were filed merely for restitution of conjugal rights. By subsequently amending the aforesaid proceedings, the relief for grant of fa308.98.odt 14/52 divorce on the ground of cruelty was sought to be made. As noted above, the requirements of Section 9 and Section 13(1)(i-b) of the said Act are distinct.
According to the learned Counsel for the appellant, the relief of restitution of conjugal rights cannot go hand in hand with the relief of divorce. Both reliefs were diametrically opposite. In support of the aforesaid submission, the learned Counsel for the appellant relied upon the decision of Himachal Pradesh High Court in Baldeoraj (Supra).
In said judgment, the alleged desertion took place on 19-2-1993. On 31-3-1993 the husband filed a petition for restitution of conjugal rights and in the alternate, sought a decree for divorce on the ground of desertion. In that context, it was observed that as the alleged desertion took place on 19-2-1993 and the petition was filed on 31-3-1993, no petition for divorce on the ground of desertion could have been entertained as the desertion itself was for a period of less than two years. In that context, it was observed that the prayer for grant of divorce itself was not tenable in law. The aforesaid judgment does not assist the appellant in view of its peculiar facts. In the present case, the prayer for grant of divorce has been made by way of amendment on the basis of prior desertion of two years. Hence, the ratio in the aforesaid case is not applicable to the case in hand.
fa308.98.odt 15/52 The learned Counsel for the appellant has then relied upon the decision of the Hon’ble Apex Court in the case of Uma Parekh (supra). Perusal of aforesaid decision reveals that though the proceedings were for restitution of conjugal rights, an alternate relief was being sought without there being any specific pleadings or without invoking the powers of the Court under Section 13 of the said Act.
decision has no application to the case in hand.
                                                               The   

petition for restitution of conjugal rights. Reliance in this regard was placed on the decision of the Madhya Pradesh High Court in Bhavna Adwani (supra). In aforesaid decision, it was observed that there was no legal prohibition under the said Act for filing proceedings for restitution of conjugal rights or in the alternate, for a decree of divorce on the ground of desertion. It was held that if at the stage of filing of the proceedings, the petitioner had sought restitution of conjugal rights and in the alternate, if the other party continued to refuse to reside together, the marriage could be dissolved if a case fa308.98.odt 16/52 for desertion was made out. The ratio of the aforesaid decision, therefore, applies to the facts of the present case.
The decision of the Allahabad High Court in Binod Kumar (Supra) is also pressed into service. In the said case, the Family Court permitted conversion of proceedings for restitution of conjugal rights to a petition for divorce. It was Court held that such course was permissible by taking support of the provisions of Section 23A of the said Act.
      The present
                 ig      case       being    one for grant

relief and there being no question of conversion of of separate the proceedings as originally filed, the aforesaid judgment has no application to the case in hand.
In Kishorilal (supra) in proceedings for restitution of conjugal rights, an alternate plea for divorce on the ground of desertion was made. On this being objected in appeal, the Division Bench of this Court observed that it did not intend to go into the said technicalities and preferred to decide the actual issue on merits. Hence, said decision is also of no assistance to the respondent.
As held in Bhavna Adwani (supra), there is no legal bar to make a prayer for grant of divorce in proceedings for restitution of conjugal rights. Though the petitioner in a given case may seek restitution of conjugal rights initially, on account of the conduct of the other side, such petitionerfa308.98.odt 17/52 could urge that the other relief of divorce on the ground of desertion could, however, be granted. If in law separate proceedings for such a relief could be filed, there is no reason not to permit a party from seeking such reliefs in the same proceedings. Ultimately, even for succeeding in the grant of such relief, it would be necessary for such party to prove the claim made therein.
                                   
      12.             Similarly,         we find that the appellant's

      objection
                 ig    to    amendment        and     to

additional prayer seeking the relief of decree of insertion of an divorce on account of cruelty is also unsustainable. A civil suit to certain extent, is bound by the procedural laws and in province of amendment, by Order 2 Rule 2, Order 6 Rule 17 of CPC and the Limitation Act,1963. The Hindu Marriage Act,1955 does not prescribe any outer period to prove the desertion or cruelty, if the cause continues. The said Act only prohibits filing of premature proceedings and after expiry of said bar-period, the cause in most of the matrimonial disputes may be continuous accruing till the normal ties are not restored. Section 21 only makes CPC applicable as far as possible and not otherwise.
The legislative intent to attempt to put an end to the matrimonial dispute in one proceeding and to avoid multiplicity is also perceived in fa308.98.odt 18/52 Section 23 and Section 23A of the said Act. Duty of Court to attempt to reconciliate or divorce by mutual consent or then an irretrievable breakdown of marriage are some of the features peculiar to this jurisdiction. Thus, primacy is given to restoration of normal marital ties and ,if not possible, to grant other appropriate relief of separation or divorce. There is no principle that husband, having failed to secure the relief of restitution, can thereafter, never, file the proceedings for divorce on the available grounds. Non execution of a decree for the restitution of conjugal rights may also lead to grant of divorce. Hence, the concept like changing the nature of suit etc. may be inherently foreign to and not applicable in matrimonial matters. Perspective that due to change in nature of suit the defense may receive severe set back may not be available at all in matrimonial jurisdiction. However, not much arguments are advanced on these lines before us and hence, we leave this aspect open for its due consideration in an appropriate case. But, on the date on which the respondent husband sought the leave to amend in present matter, it was also open to him, to institute fresh proceedings for grant of divorce on the ground of cruelty and continuous desertion. As institution of the fresh case was not prohibited, he could have very well sought leave to amend and add an additional relief in fa308.98.odt 19/52 the alternative in very same proceeding.
13. Husband-original petitioner was attempting to show unwarranted withdrawal from society by his wife i.e. appellant. Even while amending, he placed his unequivocal desire to have restitution and hence, qualified the amended prayer clause by employing the words “if not possible”. The respondent wife in said proceeding can not object to such prayers as mutually destructive prayers. She can not be heard to say that she will not cohabit and will not permit the husband to pray for dissolution of the marriage.
She can not turn a Nelson’s eye to the forgiveness offered by husband by filing a case for restitution against her and at the same time, frown upon the request for putting an end to matrimonial relationship because of her wrong offered to be condoned. Appellant can not approbate and reprobate at the same time. We find that the respondent husband has also continued with his bonafides while seeking the amendment and it is not open to appellant to urge any prejudice, though factually none is caused to her. The admitted date on which appellant left the matrimonial house is 23.8.1993 and the parties have not resided together thereafter. Child is born to the couple on 27.8.1993 and the proceedings for restitution are instituted on 22.12.1994. After filing of a written statement by wife turning down fa308.98.odt 20/52 his forgiveness and failure before the Marriage Counselor, leave to amend was sought and granted. In amended plea also, desire to condone is expressed and divorce is sought, if the condonation does not evoke required response. On that day, it was open to husband to file fresh proceedings for divorce on the strength of desertion and cruelty. Hence, by amendment, the time spent in litigation in seeking response to conditional forgiveness between 22.12.1994 till October, 1996 is thus sought to be put to use permitted by law. Appellant wife can not on one hand refuse to cohabit and on other hand, insist for institution of fresh case on the ground of desertion and cruelty. Encouraging such a defence will be to put a premium on party at fault and an injustice to a bonafide spouse who desires to resume cohabitation. It will be defeating the very scheme of jurisdiction with the Court under the said Act. We therefore express reservations on relevance/correctness of view reported at AIR 2012 Raj 8 (Reema Bajaj v. Sachin Bajaj) relied upon by the learned counsel for the appellant which considers Sections 9,13 and 13A of the said Act with Order 6 Rule 17, Order 7 Rule 7 of Civil Procedure Code and holds that an application for restitution of conjugal rights cannot be converted into application for divorce by way of amendment since prayer for restitution of conjugal rights and divorce are fa308.98.odt 21/52 diametrically opposite prayers. It is concluded by the learned Single Judge there that allowing such an amendment results into change in nature of matrimonial application. Moreover, in present matter, the learned Judge of the Family Court by order dated 20-5-1996 disposed of the earlier application for amendment filed by respondent husband by directing him to file another application for seeking divorce as an alternate relief. This order or liberty has remained unchallenged.
ig Hence, we hold that in the proceedings for restitution of conjugal rights under Section 9 of the said Act, the relief of divorce could be sought by the petitioner. Point No.2 stands answered accordingly.
14. As to Point No.3: According to the learned Counsel for the appellant, the learned Judge of the Family Court erred in permitting the proceedings to be amended so as to incorporate the alternate prayer for grant of divorce. According to the learned Counsel in view of the provisions ofSection 13(1) (i-b) of the said Act for constituting desertion as a ground for divorce, one of the parties has to desert the other for a continuous period of not less than two years immediately preceding the presentation of the petition. It was submitted that though the original proceedings were filed on 22-12-1994, by fa308.98.odt 22/52 permitting the respondent to amend the proceedings by adding the prayer for divorce on the ground of desertion, the Family Court has permitted the respondent to agitate a ground of divorce that was not permissible in law to be relied upon when such proceedings were filed. In other words, there was no desertion for period not less than two years immediately preceding the filing of the petition i.e. on 22-12-1994.
The argument though attractive, on further consideration the same does not merit its acceptance. The case of the respondent is that the appellant had left the matrimonial home in the last week of December 1993. The respondent thereafter filed application for amendment on 13-6-1996 and same was allowed on 19-10-1996. By said amendment the respondent was permitted to raise the ground of divorce on account of desertion under Section 13(1) (i-b) of the said Act. The effect of allowing the amendment on 19-10-1996 would be that it would be necessary for the respondent to prove that for a continuous period of two years prior thereto, the appellant had deserted the respondent. The amendment, therefore, would necessarily be required to have taken effect from the date it was allowed i.e. on 19-10-1996 and the same would not relate to the date of filing of the petition. The learned Judge of the Family Court while considering this issue has fa308.98.odt 23/52 observed that said ground of divorce was available to the respondent for seeking divorce. The aspect of avoiding multiplicity of proceedings has also been taken into account while allowing the amendment.
In this regard, the learned Counsel for the respondent has relied upon a judgment of the learned Single Judge of this Court in Suren (supra). It was held by the learned Single Judge that granting such an amendment would not relate back to the date of filing of the petition and the ground sought to be raised would become available only from the date of grant of such amendment. In the said case also, the ground of desertion was added by way of amendment during pendency of the matrimonial proceedings. It was observed that the ground that was initially not available could be permitted to be added on the basis of subsequent conduct of the parties and the same would not relate back to the date of filing of the petition but, said ground would become available from the date of grant of the amendment. In our view, the aforesaid observations of the learned Single Judge are correct and we respectfully affirm the same. The aforesaid decision of the learned Single Judge has been also followed by the Delhi High Court in Sanyogta (supra).
Therefore, the amendment permitting raising of a ground of divorce during pendency of the proceedings would not relate back to the date of fa308.98.odt 24/52 filing of the proceedings, but would become available from the date it is granted. Hence, Point No.3 stands answered accordingly.
15. As to Point No.4: According to the learned Counsel for the respondent, the present is a case where there has been an irretrievable breakdown of the marriage between the parties and hence, on said count itself, a decree for divorce needs to be passed. It is submitted that the parties have been living separately for last almost considering their conduct, the only inference that 20 years and can be drawn is that the marriage between the parties has broken down. In this regard, the learned Counsel placed reliance upon the decisions of the Hon’ble Apex Court in Durga (supra)and Rishikesh (supra)as well as the judgment of Andhra Pradesh High Court in Iffath (supra).
Irretrievable breakdown of marriage is not a ground envisaged by Section 13 of the said Act for grant of divorce. Separation of the parties for a long period of time without any justifiable cause amounting to desertion could be a ground for passing a decree of divorce under Section 13(1) (i-b) of the said Act. As observed by the Hon’ble Apex Court in Chetandass Vs. Kamladevi, AIR 2001 SC 1709, it would not be appropriate to apply any submission of “irretrievably broken marriage” as a strait jacket fa308.98.odt 25/52 formula for grant of divorce. Thus, it is clear that mere submission that the marriage has irretrievably broken down cannot lead this Court to pass a decree for divorce without examining if any ground for divorce has been made out or not. Such view is already taken by Division Bench of this Court in Bajrang Revdekar Vs. Pooja Revdekar AIR 2010 Bom 8. We would, therefore, prefer to examine whether the respondent has made out a case for divorce on the ground of desertion. Point No.4, therefore, stands answered accordingly.
16. As to Point No.5: The respondent has sought divorce on the ground of desertion in terms of provisions of Section 13(1)(i-b) of the said Act. The provision contemplates desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. The explanation to the expression “desertion” means the desertion of the petitioner by the other party without reasonable cause and without the consent or against wish of such party. As held hereinabove, by order dated 19-10-1996, the respondent was permitted to make a prayer for grant of divorce by allowing the amendment. Hence, the aspect of desertion will have to be considered for a period commencing two years prior thereto i.e. from 19-10-1994 onwards. In other fa308.98.odt 26/52 words, the respondent would be required to prove that the appellant had deserted him from 19-10-1994 onwards without reasonable cause and without his consent or against his wish.
Before examining the aspect of cruelty, it would be necessary to consider the observations of the Hon’ble Apex Court made in N. G. Dastane (Supra). In the aforesaid decision, it has been held that firstly the burden to prove the grounds on which relief is sought in a matrimonial proceeding rests on the petitioner. It has been further held that normal rule that governs civil proceedings namely that a fact can be said to be established if it is proved by a preponderance of probabilities is also applicable in such cases. There is no need to expect the petitioner to establish a particular ground “beyond reasonable doubt”, but the Court must be satisfied on a preponderance of probabilities that a case for relief has been made out. These aspects, therefore, are required to be considered while examining the matter on merits.
      17.             Though             the        proceedings             as





       fa308.98.odt                                                                27/52

      initially       filed    were       for     restitution         of




                                                                           
conjugal rights, the respondent has also sought divorce on the ground of mental cruelty arising out of the appellant’s conduct and behaviour as well as by the fact of desertion. In reply to the aforesaid pleadings, the appellant has denied that the respondent is entitled to claim divorce on aforesaid grounds. In her specific pleadings, the appellant has stated that she was being illtreated by the respondent. It has been pleaded that the respondent and his mother used to beat the appellant, the respondent used to drive out the appellant from the house when it was raining. There was also a threat given by the respondent of throwing acid on the appellant. There are also pleadings regarding demand of dowry by the respondent. It is stated that the respondent had called the mother of the appellant and had demanded Rs.4,000/-. It is thereafter pleaded that a demand of Rs.4,000/- towards the expenses of delivery were also made to the appellant’s father. It is then specifically pleaded that on 23-12-1993 when the appellant’s father and uncle along with other Panchas had come to fa308.98.odt 28/52 the house of the respondent, the appellant who was accompanying the aforesaid persons was beaten in presence of said persons.
The respondent in his evidence has stated that he was ready to take the appellant back, but it was her father who was not ready to send the appellant back. He has further deposed that he had issued notices on 28-1-1994 (Exh.61) and 18-2-1994 (Exh.64) calling upon the appellant to resume ig cohabitation. In examination, he has denied suggestions made the cross regarding demand of Rs.4,000/- to the appellant’s mother. There are, however, no suggestions given to him with regard to the case of the appellant on the point of illtreatment namely driving her out from the house in the rains, throwing of acid or beating her in the presence of all on 23-12-1993. The appellant in the course of her examination-in-chief has referred to the threat given by the respondent of throwing acid, demanding Rs.4,000/- from the appellant’s father and also her father being driven out when he had gone to invite the respondent for naming ceremony. In the cross examination, she has stated that fa308.98.odt 29/52 though she received the notices (Exh 61 &
64) from the respondent, she did not return to the matrimonial house though the said notices were not for divorce. She has further admitted that she had not sent any letter to her parents informing them about ill-treatment or that she had requested them to take her back. She has stated that she was employed in the year 1996 as a teacher and even after marriage she had continued service record.
                       using      her    maiden     name     in     the
               
                       The        appellant's          father          was

examined and in his cross examination he admitted that after the marriage, his daughter lived with the respondent only for 10 months. He further admitted that he did not lodge any report regarding illtreatment of his daughter or regarding demanding of dowry. Similarly, Shiodas (Exh.84) and Ashok (Exh.85) who had accompanied the appellant’s father during talks to the respondent were also examined. In their examination-in-chief, however, there is no reference to the appellant being beaten in the presence of Panchas on 23-12-1993.
       fa308.98.odt                                                                  30/52

      18.            In so far as the aspect of ill-




                                                                            
      treatment        of        the    appellant             by      the

      respondent       is      concerned       except       the     bare




                                                    
statement of the appellant, there is no material on record to come to the conclusion that the appellant was, in fact, ill-treated by the respondent. Though it was alleged that the appellant was driven out of the matrimonial home and she was required to go out when it was raining, no neighbour ig has been examined aforesaid plea. In so far as the allegation to support that on 23-12-1993, the appellant was threatened and beaten in presence of panchas, the two witnesses examined by the appellant namely Shiodas (Exh.84) and Ashok (Exh.85) do not refer to aforesaid threats or beating of the appellant in their deposition. Even the appellant’s father Manohar (Exh.83) does not say anything in this regard. In fact, no suggestions are given to the respondent that on said date, he threatened or ill treated the appellant in presence of the Panchas. Therefore, there is no material on record to hold that the respondent had ill treated or beaten the appellant on 23-12-1993. The appellant’s father in his cross examination fa308.98.odt 31/52 has categorically admitted that he did not lodge any report regarding either demand of dowry or ill-treatment at the hands of the respondent. It may be noted that it was the case of the appellant that she had left the matrimonial home on account of the ill-
treatment at the hands of the respondent.
In so far as the demand of the amount of Rs.4000/- by the respondent is concerned, the appellant has pleaded that in July 1993, the respondent had called the mother of the appellant and had demanded Rs.4000/-. It is further pleaded that similarly demand was thereafter made from the appellant’s father as expenses for delivery. The mother of the appellant to whom the first demand of Rs.4000/- was made has not been examined. Except the statement of the appellant’s father, there is no other material on record to hold that there was any such demand made by the respondent especially when the appellant’s father did not lodge any report in that regard. Hence, except bare statements on the part of the appellant and her father, the same having been denied by the respondent in his cross examination, there is no other material on fa308.98.odt 32/52 record to hold that such demand of Rs.4000/- was made by the respondent. Thus, it has to be held that the appellant has failed to prove the plea of illtreatment by the respondent or the demand of an amount of Rs.4000/- by the respondent.
The Division Bench of this Court in Bhawna (supra) has held that making false and unsubstantiated charges against other party as regards demand of dowry would amount to cruelty.
19. Having held that the appellant had failed to prove either illtreatment or demand of the amount of Rs.4000/- by the respondent, it would now be necessary to consider whether the appellant had deserted the respondent without reasonable cause and without his consent or against his wish in terms of the Explanation to the provisions of Section 13(1)(i-b) of said Act. The reasons assigned by the appellant for leaving matrimonial home are on account of the illtreatment and demand of Rs.4000/- by the respondent. Other than the aforesaid two reasons, no other reason has been assigned for leaving matrimonial home. The fa308.98.odt 33/52 respondent in his cross examination has stated that on the day the appellant left the matrimonial home, they were living separately from his mother and brother and hence, when he returned home, he did not find anybody at home. It is also necessary to note that the respondent by sending two notices (Exh.61 & Exh.64) had called upon the appellant to rejoin his company. There was, however, no positive response from the appellant.
      the
                
             proceedings
                          Thereafter, during pendency of

                                  when    the     parties        were
               
      referred       to    the    Marriage      Counselor,         the

appellant stated before him that she was not desirous of returning to the matrimonial home and that she would do so only after her son completed the age of 18 years. The appellant, therefore, has failed to place any justifiable reason on record or to assign any reasonable cause to desert the respondent. The reasons given for leaving the matrimonial home have not been proved by the appellant and hence, it has to be held that the appellant has deserted the respondent “without reasonable cause” in terms of the Explanation to Section 13(1)(i-b) of said Act. It is, therefore, clear that though the appellant left the fa308.98.odt 34/52 matrimonial home before the birth of her son on 27-8-1993, as stated above, considering the desertion for the period from 19-10-1994 onwards, it is clear that the appellant has left the matrimonial home and deserted the respondent “without reasonable cause”.
20. It is not in dispute that appellant did not agree to resume cohabitation even on trial basis and expressed that she would consider going to her husband’s house only after her son became major i.e. on or after 27.8.2011. She has left the matrimonial house behind her husband on 23.8.1993 and hence, burden was upon her to bring on record the justification therefor. Not only this, if she had any desire to resume matrimonial relationship, steps taken by her in that direction should have been pleaded and proved. Her readiness to cohabit pleaded in written statement is subject to the undertaking of husband and circumstances justifying that need are not proved by her. Effort to reunite alleged by her on 23.12.1993 does not substantiate any need of undertaking and that effort also is not brought on record with proper evidence. On the contrary, it militates with her other plea of demand of money and cruelty which again is not proved. Why she could notfa308.98.odt 35/52 agree to temporary joint stay on trial basis or required time till her son attained 18 years of age even to think of returning to her matrimonial house or wanted an unreasonably long time to even consider its pros and cons is not clarified. She appears not interested in cohabitation sand also in dissolving the marriage. It is obvious that this is nothing but cruelty as also desertion. Even before the Family Court or then before this Court, she never expressed her design to revive the relationship. She is only or opposing every move of her husband without any rhyme reason. Marriage in question has lost its propriety and there is no point in continuing the relationship. It will, therefore, have to be held that the appellant having failed to assign any reasonable cause for desertion, the respondent is entitled for a decree of divorce on the ground of cruelty on account of said desertion.
21. At this stage, it is necessary to refer to the contention raised by the appellant regarding the aspect of condonation of acts by the respondent. In view of the provisions of Section 23(1)(b) of the said Act, the Court is required to be satisfied that the party seeking divorce fa308.98.odt 36/52 on the ground of cruelty has not in any manner condoned the cruelty. The expression “or condoned the act or acts complained of”
as appearing in Section 23(1)(b) of the said Act is required to be considered.
Law on the point of condonation is laid down by the Division Bench of this Court in 2000 (1) Mh.L.J. 429 (Harvinder Singh Marwah Vs. Charanjit Kaur). There the cruelty was found established in Divorce Petition filed by husband on the ground of cruelty. Till the respondent wife left the marital home, they were co-habiting together and were having physical relations. Question involved was whether the order of learned Principal Judge dismissing the petition on the ground of condonation of cruelty needed to be set aside? While answering the question in affirmative, this Court held in para 11 that “For two young persons to have physical relations is quite common. But that itself would not lead to an inference of condonation. Even that case is not put forth by the other side. She has left the marital home since 24.4.1992 and has stayed away since then.”
       fa308.98.odt                                                                   37/52

                     In        Ravi Kumar v. Julmidevi, (2010) 4 SCC




                                                                             
476, at page 478 Hon. Apex Court has observed that:
“9. Several questions cropped up in the course of hearing before the High Court. One of them being whether in view of filing of a proceeding for restitution of conjugal rights, the appellant had condoned all alleged prior acts of cruelty of the wife.
10. The High Court after considering some decisions came to a finding that by filing a petition under Section 9 of the Act, the appellant had condoned the earlier alleged acts of cruelty of the respondent wife. Condonation is basically a question of fact. This Court finds that the reasoning of the High Court on condonation in the facts of this case is correct.”
In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, at page 568, Hon. Apex Court observed in para 42 that ” In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth5 (All ER at p. 536 H-I) the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, “the case, like any civil case, may be proved by a preponderance of probability”.
fa308.98.odt 38/52 In N.G. Dastane (Dr) (supra), in para 55 to 58, Hon. Apex Court observes:-
“55. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty.
But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.
56. The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent’s acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive andfa308.98.odt 39/52 restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dualfa308.98.odt 40/52 requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part.
57. But condonation of a matrimonial offence is not to be likened to a full Presidential pardon under Article 72 of the Constitution which,once granted, wipes out the guilt beyond the possibility of revival. Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. “No matrimonial offence is erased by condonation. It is obscured but not obliterated”. Since the condition of .forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence. Condoned cruelty can therefore be revived, say, by desertion or adultery.
58. Section 23(1)(b) of the Act, it may be urged, speaks of condonation but not of its revival and therefore the English doctrine of revival should not be imported into matters arising under the Act. Apparently, this argument may seem to receive some support from me circumstance that under the English fa308.98.odt 41/52 law, until the passing of the Divorce Reform Act, 1969 which while abolishing the traditional bars to relief introduces defences in the nature of bars, at least one matrimonial offence, namely, adultery could not be revived if once condoned. But a closer examination of such an argument would reveal its weakness. The doctrine of condonation was established by the old ecclesiastical courts in Great Britain and was adopted by the English courts from the canon law.
“Condonation” is a technical word which means and implies a conditional waiver of the right of the injured spouse to take matrimonial proceedings. It is not “forgiveness” as commonly understood. In England condoned adultery could not be revived because of the express provision contained in Section 3 of the Matrimonial Causes Act, 1963 which was later incorporated into Section 42(3) of the Matrimonial Causes Act, 1965. In the absence of any such provision in the Act governing the charge of cruelty, the word “condonation” must receive the meaning which it has borne for centuries in the world of law. “Condonation” under Section 23(1)(b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed.”
The Division Bench of the Delhi High Court in Mat. App. (FC) No. 3/2013 and CM 7056 and 7057/2013-Pushpa Rajai Vs. Jai fa308.98.odt 42/52 Prakash Lalwani recently accepted the same meaning by following N. G. Dastane (supra). In AIR 2013 Chh 88 (Smt. Mamta Namdeo Vs. Ghanshyam Bihari Namdeo), the Chhattisgarh High Court also adopted the same view.
22. Thus, to constitute condonation in terms of Section 23(1)(b) of the said Act, there must be forgiveness and restoration. The question, however, is whether for constituting condonation, the conduct of only one of the parties is to be considered or whether the conduct of both parties is to be taken into account. In other words, whether the unilateral act of one of the parties is to be considered or whether the bilateral acts of both parties are to be considered. If for constituting condonation, there must be forgiveness and restoration, it is obvious that bilateral acts of both parties will be required to be taken into account while considering the aspect of condonation. Forgiveness and restoration cannot be unilateral and for it to be effective and fruitful, it has to be bilateral. One party to the marital tie may be ready to forgive and restore the same.
       fa308.98.odt                                                                43/52

      One    of      the    modes       could    be     by     filing




                                                                          
      proceedings          for    restitution         of     conjugal

rights. The other party may, however, not be ready to forgive and restore said tie. The proceedings filed by one party for restitution could be opposed by the other by refusing to rejoin the marital tie. The same would not result in condonation in as much as there would be no consensus between the parties for the purposes of forgiveness and sided.
restoration.
                  Hence,     the
                                    It

                                    aspect
                                           would

                                                 of
                                                      remain

                                                       condonation
                                                                   one-
               
will have to be adjudicated after taking into account the bilateral acts of both parties. The offer made by one party and the reciprocal conduct of the other will have to be viewed together while determining codonation in terms of Section 23(1)(b) of the said Act.
What we can gather from the above precedents is that condonation implies knowledge to the husband of being wronged by wife, conscious election by him not to exercise the legal right flowing therefrom,to forgive the wife conditionally and the same resulting in the resumption of normal relationship between the couple.
fa308.98.odt 44/52 Thus, it is resumption of normal marital ties with mutual understanding which assumes significance. In matter like one at hand, where the desertion continues without even a day’s break, the conditional forgiveness offered by the husband is not reciprocated by the respondent wife. On the contrary, she refuses to take advantage of the opportunity available and persists in desertion. As such, condonation which technically is a bilateral act or decision, never occurred and insistence upon the said aspect by the appellant wife is misconceived and ill advised.
In Baldev Raj (supra), the parties were married on 7-8-1998. After about seven months, the wife left the matrimonial home, but returned back in May 1989. Thereafter, she again left her husband after a week and later on rejoined him. On 19-2-1993, she again deserted him. The husband made efforts from 20-2-1993 to 28-2-1993 to bring her back, but was not successful. On 23-3-1993, the husband went to his wife’s place to get her back but was not unsuccessful. He, therefore, filed proceedings for restitution of conjugal rights on 31-3-1993 with an alternate fa308.98.odt 45/52 prayer for dissolving the marriage by a decree of divorce. In that context, relying upon the Division Bench judgment of said High Court in Nirmala Devi Vs. Ved Prakash AIR 1993 HP 1 , it was held in Baldev Raj (supra) that filing of petition for restitution of conjugal rights implied condonation of all earlier acts of cruelty. Similar view has been taken in Reema Bajaj (supra), where amendment was sought to convert conjugal ig proceedings rights into for restitution proceedings of for divorce on the ground of desertion. The learned Single Judge of the Rajasthan High Court observed that filing of proceedings for restitution of conjugal rights amounted to condonation or forgiveness of the alleged act of cruelty till the date of filing of the amendment application. With utmost respect, we are unable to agree with aforesaid views. The unilateral act of filing petition for restitution of conjugal rights ignoring the response of the other side by itself would not amount to condonation for the purposes of Section 23(1)(b) of the said Act. When satisfaction in terms of said provision is to be arrived at by the Court, the approach fa308.98.odt 46/52 and response of both parties will have to be taken into account.
23. In the present case, in view of filing of the petition for restitution of conjugal rights by the respondent, the appellant has submitted that the same amounts to the respondent condoning the alleged act of desertion and cruelty.
In the proceedings for restitution of conjugal rights, the appellant filed her written statement and opposed the relief sought by the respondent. The offer made by the respondent for restituting conjugal rights by filing petition under Section 9 of the said Act was not accepted by the appellant who replied that the respondent was not entitled for said relief. Prior thereto, the response of the appellant to the two notices sent by respondent (Exh.61 & 64) was also not positive. In her cross- examination, the appellant stated that it was suggested to the parties to live together on trial basis and inform the Court. She has also admitted that she had stated before the Marriage Counsellor that she would consider going back to her husband after her son would complete the fa308.98.odt 47/52 age of 18 years. Thus, neither the pleadings of the parties nor the evidence of the appellant indicate any bilateral act or conduct so as to record a finding that there was forgiveness and restoration between the parties and the same amounted to condonation of the act of desertion on the part of the appellant.
                                  
      24.             Further,      the      appellant      has     opposed        the

      petition
                 ig   for    divorce      on    the    ground

It was, therefore, necessary for her to have pleaded of cruelty.
and proved the fact that the respondent had in any manner condoned the alleged cruelty. There is, however, no evidence whatsoever on record to hold that the respondent had in any manner condoned the desertion by the appellant. The appellant has not placed any material on record to indicate that the respondent had condoned the aforesaid desertion on the part of the appellant. As stated herein above, the ground of cruelty on account of desertion having been permitted to be raised on 19-10-1996, the act of condoning such desertion should be from 19-10-1994 onwards on the part of the respondent. In other words, the appellant was required to show that after 19-10-1994, the respondent had in any manner condoned the unwarranted desertion of the appellant. However, there is hardly any material on record to come to fa308.98.odt 48/52 such a conclusion. We, therefore, record our satisfaction in terms of Section 23(1)(b) of the said Act that the respondent has not in any manner condoned the desertion on the part of the appellant from 19-10-1994 onwards in any manner whatsoever.
25. In Samar Ghosh (Supra) relied upon by the learned Counsel for the respondent, it has been observed in para 101 that where there has been a long period of continuous separation, it could be fairly concluded that the matrimonial bond is beyond repair. In such situation by refusing to sever that tie, the same could lead to mental cruelty. From the evidence on record, it is clear that after being married on 2-12-1992 the parties lived together only for a period of 10 months. They have resided separately since then, now almost for 20 years. We have found that the material on record is sufficient to hold the respondent entitled for a decree of divorce on the ground of desertion. The learned Judge of the Family Court has found that the appellant had failed to prove various allegations made by her which were reasons for deserting the fa308.98.odt 49/52 respondent. We find that the aforesaid conclusion has been arrived at on the basis of the material on record and we find no reason whatsoever to strike a discordant note. Accordingly, we affirm the conclusion arrived at by the Family Court and hold the respondent entitled for a decree of divorce.
26. ig The last grievance on behalf of the appellant namely re-marriage by the respondent during pendency of the appellant is now required to be noticed. According to the learned Counsel for the appellant, though the present appeal was pending, the respondent remarried on 30-11-1998. According to the learned Counsel, the aforesaid conduct of the respondent was required to be taken note of. Relying upon the decisions of the Hon’ble Apex Court in Tejinder Kaur (Supra), Lata Kamat (Supra), and of the Division Bench of this Court in Smita Rane (Supra), it was submitted that the appeal preferred by the appellant would not be rendered infructuous. On the other hand, it was submitted by the learned Counsel for the respondent that while fa308.98.odt 50/52 admitting the present appeal, Rule on stay was issued by this Court on 3-8-1998. Said Rule on stay came to be discharged after hearing both sides on 11-9-1998. It was submitted that it was open for the appellant to have sought review of aforesaid order, but the same was not done. It was, therefore, submitted that in these circumstances, as interim stay was not granted during pendency of the appeal, the respondent had remarried on 30-11-1998.
The Hon’ble Apex Court in Tejinder Kaur (Supra), Lata Kamat (Supra) as well as this Court in Smita Rane (Supra) have held that the appeal as filed under Section 28 of said Act would not become infructuous only on account of the remarriage during pendency of said appeal. In view of the aforesaid law as laid down, we have considered the challenge to the decree passed by the Family Court on merits and we have not treated the appeal as filed to have become infructuous. We have thereafter found that the decree passed by the Family Court granting divorce to the respondent is legal and proper. We, accordingly, answer point No.5 as above and hold that thefa308.98.odt 51/52 respondent is entitled for a decree of divorce on the ground of cruelty.
27. In view of our aforesaid findings, we find no merit in the challenge to the decree passed by the Family Court. Both the parties have filed affidavits on record on the aspect of amount of maintenance. From the material on record, it is clear that the appellant was serving as an Anganwadi Sevika at Samudrapur and is getting Rs.4000/- per month. The son born on 27-8-1993 has now attained the age of majority. The respondent in his affidavit has stated that he is paying an amount of Rs.1500/- towards maintenance to the appellant and her son in addition to an amount of Rs.896/- that is being deducted from his salary. This arrangement is in force since 8-12-2003 as per orders passed on the pursis signed by both sides. Said arrangement can, therefore, be directed to be continued till it is modified in accordance with law. Hence, while dismissing the appeal, it is directed that the arrangement as jointly arrived at by the parties and as ordered by this Court on fa308.98.odt 52/52 8-12-2003 shall continue to operate till it is modified in accordance with law. Point No.6 stands answered accordingly.
28. In the result, the following order is passed:
[i] The appeal challenging the judgment dated 8-6-1998 passed by the Family Court, Nagpur in igPetition dismissed No.A-604/1996 with parties stands left to bear their own costs.
[ii] The respondent shall continue to pay a sum of Rs.1500/- per month in addition to the deduction of Rs.896/- per month from his salary to the appellant in terms of joint pursis dated 8-12-2003 till said arrangement is duly modified in accordance with law.

 

Divorce within one year of marriage under hindu marriage act.

 

The points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date ofmarriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
23. I would like to extract hereunder SectiThe points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date ofmarriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:
“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorcebefore the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition fordivorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
———————————————————————————————————
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20/11/2012

CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA

C.R.P.(PD)(MD)No.2265 of 2012
and
C.R.P.(PD)(MD)No.2266 of 2012
and
M.P.(MD)No.1 of 2012
in
C.R.P.(PD)(MD)No.2265 of 2012

C.R.P.(PD)(MD)No.2265 of 2012:

G.Ganesh Babu … Petitioner/Petitioner/
Respondent
Vs.
A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
!For Petitioner … Mr.K.K.Ramakrishnan ^For Respondent … Mr.J.Barathan * * * * * C.R.P.(PD)(MD)No.2266 of 2012:
G.Ganesh Babu … Petitioner/Petitioner/ Respondent Vs.
A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
For Petitioner … Mr.K.K.Ramakrishnan For Respondent … Mr.J.Barathan * * * * * :COMMON ORDER C.R.P(PD)(MD)No.2265 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
2. C.R.P(PD)(MD)No.2266 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
3. Heard both sides.
4. The petitioner herein namely G.Ganesh Babu and the respondent herein namely A.P.Arthi, are referred to hereunder as husband and wife respectively.
5. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these Civil Revision Petitions, would run thus:
(i) The wife filed the H.M.O.P.No.82 of 2011, during the month of June’ 2011, so to say, within a period of one year from the date of marriage, invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking the following reliefs:
“(a) granting a decree of divorce, dissolving the marriage solemnized between the Petitioner and Respondent on 18.11.2010;
(b) directing the Respondent to pay the costs of this Petition;” however, without filing an application to obtain the leave citing the exceptional circumstances.
(ii) The husband after entering appearance, filed the application in I.A.No.184 of 2011 for rejection of the H.M.O.P.No.82 of 2011 on the main ground that it was presented within one year from the date of marriage and that too, without any application to obtain leave citing exceptional circumstances. The counter affidavit was filed by the husband.
(iii) Whereupon I.A.No.26 of 2012 was filed by the wife seeking virtually ex post facto leave underSection 14(1) of the Hindu Marriage Act, 1955.
(iv) The lower Court heard both the applications and passed a common order allowing the application filed by the wife and dismissing the application filed by the husband.
6. Being aggrieved by and dissatisfied with the same, the husband preferred these two Civil Revision Petitions challenging and impugning the orders passed by the lower Court.
7. The nutshell facts absolutely necessary for the disposal of these two Civil Revision Petitions would run thus:
The petitioner and the respondent got married as per Hindu rites and customs on 18.11.2010 at Aruppukottai. Subsequently, the wife during June’ 2011, so to say, within one year, filed the petition seeking divorce.
8. The learned Counsel for the husband would put forth and set forth his arguments, the warp and woof of the same, would run thus: Obtaining the leave of the Court is sine quo non for filing the H.M.O.P., for divorce within one year and it is mandatory and it cannot be simply ignored as directory. The object of Section 14 of the Hindu Marriage Act, 1955, was not taken into consideration by the lower Court. If this sort of practice is allowed, then the sanctity attached to the marriages, would be set at naught. Over and above that, the reasons found stated for obtaining the said ex post facto leave is frivolous and there is nothing exceptional in it. The dowry demand is the pith and marrow of the alleged exceptional circumstances found set out in the affidavit accompanying the petition filed by the wife. Accordingly, the learned Counsel for the husband citing various precedents, would pray for allowing the I.A.No.184 of 2011 and for dismissal of H.M.O.P.No.82 of 2011.
9. Whereas in a bid to mince meat and torpedo and pulverise the arguments as put forth on the side of the husband, the learned Counsel for the wife, would pyramid his arguments, the pith and marrow of them would run thus: The entire reading of Section 14 of the Hindu Marriage Act, 1955, would connote and denote, project and portray that the obtention of such leave was not mandatory. So far this case is concerned, it is not that wilfully the H.M.O.P.No.82 of 2011 was filed within one year without obtaining leave and unwittingly alone, the petition for divorce was filed without filing the application under Section 14 of the Hindu Marriage Act, 1955, narrating the exceptional circumstances. As such, the lower Court taking into consideration the pro et contra, thought that it would be a mere waste of time to reject the H.M.O.P., and thereby paving the way for the wife to file a fresh petition for divorce on the same grounds.
10. The learned Counsel for the wife also cited various decisions in support of his arguments.
11. The points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date of marriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
Point Nos.(i) and (ii)
12. At the outset itself, I would like to fumigate my mind with the decisions cited by both sides.
13. The learned Counsel for the husband placed reliance on the following decisions:
(i) Swamidoss Joseph v. Miss Edward reported in A.I.R. 1955 MADRAS 341.
(ii) Vinod v. Manju reported in AIR 1982 DELHI 592.
(iii) Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC).
(iv) Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
14. The learned Counsel for the wife relied on the following precedents:
(i) Rabindra Nath Mukherjee v. ITI Mukherjee alias Chatterjee reported in CDJ 1991 Cal HC 017.
(ii) Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435.
(iii) Manisha Jha (Smt). v. Kunal Kanti Jha reported in CDJ 1998 Cal HC
019.
(iv) Kailash v. Nanhku and others reported in (2005) 4 Supreme Court Cases
480.
(v) R.N.Jadi and Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(vi) Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140.
(vii) Gijoosh Gopi, Alappuzha v. S.Sruthi, Alappuzha reported in CDJ 2012 Ker HC 832.
15. A mere running of the eye over the aforesaid precedents would highlight and spotlight the fact that the Division Bench of the Calcutta High Court in Rabindra Nath Mukherjee v. ITI Mukherjeealias Chatterjee reported in CDJ 1991 Cal HC 017, held that seeking leave of the Court within one year to file the petition for divorce from the date of marriage, was only directory and not mandatory and the said decision was followed by the learned Single Judge of this Court inIndumathi v. Krishnamurthy reported in 1998 (III) MLJ 435. The aforesaid decision of this Court is also followed by the learned Single Judge of the Calcutta High Court in Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140. However, the Division Bench of the Karnataka High Court took a different view of the matter in Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
16. As such, the decision of the learned Single Judge of this Court following the decision of the Division Bench of the Calcutta High Court, is very much available before me. Normally, the decisions rendered by the learned Single Judge of this Court should be followed by another learned Single Judge of this Court and the judicial discipline warrants such a procedure.
17. However, the learned Counsel for the husband would place reliance on the decision of the Division Bench of the Karnataka High Court, which is against the decision of the learned Single Judge of this Court as well as the Division Bench of the Calcutta High Court Simply because, a subsequent Division Bench of Karnataka High Court is in variance with the decision of the learned Single Judge of this Court and the Division Bench of the Calcutta High Court, I am not bound to simply follow the said judgment of the Karnataka High Court. The learned Single Judge of this Court placed reliance on the decision of the Division Bench of Calcutta High Court. As such, two Division Benches of two different High Courts have two different views and the learned Single Judge of this Court followed the view of one of such decisions of the Division Benches and wherefore, I am justified in following the decision of the learned Single Judge of this Court and consequently, the decision of the Division Bench of the Calcutta High Court.
18. Over and above that, I would also like to independently furnish my own views in this matter.
19. My mind is redolent and reminiscent of the following legal maxims:
(i) “Verba generalia generaliter sunt intelligenda”. [General words are to be understood generally.]
(ii) “Verba ita sunt intelligenda, ut res magis valeat quam pereat.” [Words are to be so understood that the matter may have effect rather than fail.]
(iii) “Maledicta expositio quae corrumpit textum”. [It is a cursed construction that corrupts the text.]
(iv) “Absoluta sententia non indiget expositore”. [A simple proposition needs no expositor.]
20. I would also like to extract hereunder the relevant excerpt from the famous treatise “Maxwell on The Interpretation of Statutes [Twelfth Edition by P. St. J. Langan]”:
Chapter 5 – Restrictive Construction:
“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended.”
One other excerpt from the same treatise would run thus: “Section 12 (3) of the Matrimonial Causes Act 1950 provided that if the spouse obtaining a decree nisi of divorce did not make an application for it to be made absolute six months after the trial, then the other spouse could make application within a further period of three months and, if the circumstances warranted, obtain a decree absolute. The Court of Appeal held that this did not oust the jurisdiction of the court to substitute a decree of judicial separation for a decree nisi: “had it been the intention of the legislature to revoke this jurisdiction, it would have been done in a clearer way than by inference from the subsection.”
21. On a mere running of the eye over those legal maxims and the principles found enshrined in the aforesaid famous treatise, I am of the view that generally, the time limit prescribed in the procedural laws are directory and not mandatory and further that they are only by way of taking a cue that the time limit prescribed under Section 14 of the Hindu Marriage Act, 1955, will not cut at the jurisdiction of the Court. However, the learned Counsel for the husband placing reliance on the decision of the Honourable Apex Court in Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC), would submit that so far Marriage Laws are concerned, time stipulated cannot be taken as directory, but it should be taken as mandatory.
22. I would like to point out that in the aforesaid decision of the Honourable Apex Court relating to Section 13-B of the Hindu Marriage Act, 1955, what was found stressed is that the consent of both sides should be essential at both stages, viz., at the time of jointly presenting the petition and at the time of obtention of divorce after the prescribed period of six months. There could be no quarrel over such a proposition. However, Section 14 of the Hindu Marriage Act, 1955, is on a different footing.
23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:
“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
25. At this juncture, I would like to recollect the following decisions:
(i) Kailash v. Nanhku reported in 2005 (3) CTC 355.
(ii) Rani Kusum v. Kanchan Devi reported in (2005) 6 Supreme Court Cases
705.
(iii) Salem Advocate Bar Association v. Union of India reported in (2005) 6 Supreme Court Cases 344.
(iv) R.N.Jadi & Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(v) Zolba v. Keshao and others reported in (2008) 11 Supreme Court Cases
769.
26. The pith and marrow, the gist and kernel of the aforesaid precedents is that whenever any condition is stipulated in law in negative language, then that itself is not sufficient to hold that the law contemplated the said provision as mandatory, but the consequences of such non-adhering to the time limit also should be found spelt out in the statutory provision. Under Order VIII Rule 1 of the Code of Civil Procedure, even though in negative language, the provisions are found spelt out, the consequences were not found spelt out. Hence, the Honourable Apex Court consistently held that such time stipulated cannot be taken as mandatory, so much so also, here under Section 14 of the Hindu Marriage Act, 1955, the legislators in their wisdom thought not to impose any consequences of such non-adherence to the time limit.
27. On the other hand, as correctly held by the learned Single Judge of this Court earlier, in the decision cited supra, even a person who got leave by misrepresentation was given the benefit of divorce, but that would take effect after one year from the date of marriage. Hence, I am of the considered view that the decision of the learned Single Judge of this Court in Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435 with great respect is the binding precedent on the point concerned.
28. The learned Counsel for the husband also referred to the Halsbury’s Laws of England – Fourth Edition – by Lord Mackay of Clashfern – Volume 29(3) – 2001.
29. I am of the view that when the earlier decision of this Court is clear and unambiguous on the point, I need not dilate further on that issue.
30. On factual basis, the learned Counsel for the husband would try to canvass his case by pointing out that so far the exceptional circumstances mandated in the affidavit of the wife, are not really exceptional circumstances, but they are only relating to alleged dowry harassment and cruelty. Whereas the learned Counsel for the wife would submit that the allegations found spelt out in the affidavit accompanying the application filed by the wife seeking ex post facto leave were of such a nature that they were so horrible for the wife who is a Doctor by profession.
31. The wife in her affidavit accompanying the application in I.A.No.26 of 2012, set out thus:
“4. I submit that even before the solemnization of marriage, the respondent and his family members demanded 120 sovereign of golden jewels, Rs.8,00,000/- cash and stridhan articles worth about Rs.2,00,000/- from my parents. My parents were put under severe strain and mental agony as they had to arrange the above dowry before the solemnization of marriage. Only after receiving the cash amount of Rs.8,00,000/- on hand one day prior to the marriage, the respondent has agreed to perform the marriage.
5. I submit that after marriage, the conjugal home was set up at Arupukkotai in the house of respondent. At the time of living at Arupukkottai, the respondent has demanded a further dowry of Rs.60,00,000/- from me by saying that his father has borrowed huge amounts from outer sources as a loan to get higher education for him and hence, he has to settle those amounts by getting dowry amount from me. The respondent added that he had married me for money alone. The respondent’s father, and his father’s brother namely, Gunasekaran, the respondent’s brother and sister have often harassed and tortured me to get money to the tune of Rupees Sixty lakhs and a Honda city car from me.
6. The Respondent and his family members often threatened me that they will not allow me to live peacefully, unless I brought the above said dowry amount from my parents I lived at Hosur under unsafe condition under threat to life from the respondent. I submit that the respondent used to demand dowry continuously without any basis, and hence, because of the above said attitudes of the respondent, I could not lead a peaceful family life.
7. I submit that I am living separately till date. Even though my parents conducted peace talks with the respondent and his family, all the efforts made by them had gone on vain and the respondent firmly states that unless his additional dowry demand of Rupees Sixty Lakhs and Honda city car and a house at Arupukkottai is fulfilled, there is no possibility of unite with the petitioner.
8. It is submitted that finally on 10.3.2011, a peace talk was arranged by the respondent with caste leaders, relatives and elders. In that peace talks, the respondent and his family members told that unless, their additional dowry demands are fulfilled, there is no other way except to dissolve the marriage by way of divorce. Hence, we filed a divorce petition by mutual consent before this Hon’ble Court without any prior condition. More over, a divorce agreement was executed between me and the respondent on 10.3.2011 itself, before the competent witnesses and the respondent has put his left hand thumb impression in the said agreement engrossed in Rs.50/- Stamp paper. On the same date itself, the respondent has got the signatures of me and my parents in several blank papers and unfilled stamp papers. Even though the respondent has agreed to return the stridhan articles and cash amount in the Court. The respondent has got back his “Thali” tied to me and all the formalities were done before the above said competent witnesses on 10.3.2011.
9. I submit that myself and respondent has filed a divorce petition under mutual consent before this Hon’ble Court in H.M.O.P.No.50 of 2011. To my shock and surprise, the respondent told me that unless the house property at Arupukkottai is purchased and given in his name for the tune of Rs.40,00,000/-, he will not accept for mutual divorce. As the respondent’s illegal demand could not be fulfilled by me, I filed the present H.M.O.P.No.82/2011.”
(extracted as such.)
32. As such, based on the above narration of facts, she contended that because of exceptional circumstances found set out therein, she was constrained to file the H.M.O.P.No.82 of 2011, within a period of one year from the date of marriage. No doubt, those allegations are only allegations and they were not proved. But, in my considered opinion, those are all serious allegations of exceptional nature and the lower Court also treated as exceptional circumstances, warranting no interference by this Court.
33. It is a singularly singular case wherein the husband and the wife both happened to be Doctors in medical profession and from the view point of the wife, the conduct of the husband in treating her constituted the exceptional circumstances and utmost hardship and discomfiture. The lower Court being the first Court of facts, after considering the allegations and counter allegations, thought fit to virtually grant ex post facto leave and this Court being the revisional Court is having no reason to interfere with the same.
34. As suggested by the learned Counsel for the husband, if the H.M.O.P., has to be dismissed, it would not be for anything, but for the wife to file a fresh H.M.O.P., on the same grounds. As such, the same process already underwent would enure. The multiplicity of proceedings should be avoided and obliterated. No doubt, the sanctity of the marriage should be preserved. Soon after the marriage, without taking steps for reconciliation, etc, and having sufficient time for reflection, they should not be allowed to approach the Court for divorce and in the meantime, one other aspect, this Court has to see. Unwittingly, if a person filed a petition for divorce without seeking leave and much water has already flown under the bridge in dealing with the said petition, it would not be proper to dismiss that petition on the technical ground after lapse of two years as in this case and it would amount to throwing the baby along with the bathe water.
35. While holding so, I am of the view that exceptions should be exceptional and it should not become the rule. So far this case is concerned, I would like to find fault with the lower Court for numbering the H.M.O.P., without insisting for an application seeking leave under Section 14 of the Hindu Marriage Act, 1955.
36. My mind is redolent of the following legal maxims:
(i) “Actus curiae neminem gravabit”. [An act of the court will prejudice no one.]
(ii) “Quod fieri non debet, factum valet.” [What ought not to be done, when done, is valid.]
37. The lower Court should have returned the petition for divorce when it was presented well within one year from the date of marriage, but it has not been done so and it is only the fault of the Court. Because of the fault of the Court, the party concerned at a later date should not suffer.
38. In this connection, I could also fruitfully refer to the following legal maxims:
(i) “Nul prendra advantage de son tort demesne”. [No one shall take advantage of his own wrong.]
(ii) “Nullus commodum capere potest de injuria sua propria”. [No one can obtain an advantage by his own wrong.]
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition for divorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
40. I take it as an opportunity to mandate all the Courts below concerned that hereafter whenever any petition for divorce is filed within a period of one year from the date of marriage, the Courts should invariably return that petition without numbering it and unless leave is obtained, such petition for divorce should not be entertained. Point Nos.(i) and (ii) are answered accordingly.
41. In the result, both the Civil Revision Petitions are dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
42. On hearing the order pronounced, the learned Counsel for the husband would seek oral leave of this Court so as to enable his client to prefer appeal to the Honourable Apex Court. I am of the considered view that since the order is passed based on the earlier decision of the learned Single Judge of this Court which is based on the decision of the Division Bench of Calcutta High Court, no leave is required.
rsb To
1.The Sub Court, Aruppukottai.on 14 of the Hindu Marriage Act, 1955:

“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorcebefore the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition fordivorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
———————————————————————————————————
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20/11/2012

CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA

C.R.P.(PD)(MD)No.2265 of 2012
and
C.R.P.(PD)(MD)No.2266 of 2012
and
M.P.(MD)No.1 of 2012
in
C.R.P.(PD)(MD)No.2265 of 2012

C.R.P.(PD)(MD)No.2265 of 2012:

G.Ganesh Babu   ... Petitioner/Petitioner/
       Respondent
Vs.
A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
!For Petitioner … Mr.K.K.Ramakrishnan ^For Respondent … Mr.J.Barathan * * * * * C.R.P.(PD)(MD)No.2266 of 2012:
G.Ganesh Babu … Petitioner/Petitioner/ Respondent Vs.
A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
For Petitioner … Mr.K.K.Ramakrishnan For Respondent … Mr.J.Barathan * * * * * :COMMON ORDER C.R.P(PD)(MD)No.2265 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
2. C.R.P(PD)(MD)No.2266 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
3. Heard both sides.
4. The petitioner herein namely G.Ganesh Babu and the respondent herein namely A.P.Arthi, are referred to hereunder as husband and wife respectively.
5. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these Civil Revision Petitions, would run thus:
(i) The wife filed the H.M.O.P.No.82 of 2011, during the month of June’ 2011, so to say, within a period of one year from the date of marriage, invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking the following reliefs:
“(a) granting a decree of divorce, dissolving the marriage solemnized between the Petitioner and Respondent on 18.11.2010;
(b) directing the Respondent to pay the costs of this Petition;” however, without filing an application to obtain the leave citing the exceptional circumstances.
(ii) The husband after entering appearance, filed the application in I.A.No.184 of 2011 for rejection of the H.M.O.P.No.82 of 2011 on the main ground that it was presented within one year from the date of marriage and that too, without any application to obtain leave citing exceptional circumstances. The counter affidavit was filed by the husband.
(iii) Whereupon I.A.No.26 of 2012 was filed by the wife seeking virtually ex post facto leave underSection 14(1) of the Hindu Marriage Act, 1955.
(iv) The lower Court heard both the applications and passed a common order allowing the application filed by the wife and dismissing the application filed by the husband.
6. Being aggrieved by and dissatisfied with the same, the husband preferred these two Civil Revision Petitions challenging and impugning the orders passed by the lower Court.
7. The nutshell facts absolutely necessary for the disposal of these two Civil Revision Petitions would run thus:
The petitioner and the respondent got married as per Hindu rites and customs on 18.11.2010 at Aruppukottai. Subsequently, the wife during June’ 2011, so to say, within one year, filed the petition seeking divorce.
8. The learned Counsel for the husband would put forth and set forth his arguments, the warp and woof of the same, would run thus: Obtaining the leave of the Court is sine quo non for filing the H.M.O.P., for divorce within one year and it is mandatory and it cannot be simply ignored as directory. The object of Section 14 of the Hindu Marriage Act, 1955, was not taken into consideration by the lower Court. If this sort of practice is allowed, then the sanctity attached to the marriages, would be set at naught. Over and above that, the reasons found stated for obtaining the said ex post facto leave is frivolous and there is nothing exceptional in it. The dowry demand is the pith and marrow of the alleged exceptional circumstances found set out in the affidavit accompanying the petition filed by the wife. Accordingly, the learned Counsel for the husband citing various precedents, would pray for allowing the I.A.No.184 of 2011 and for dismissal of H.M.O.P.No.82 of 2011.
9. Whereas in a bid to mince meat and torpedo and pulverise the arguments as put forth on the side of the husband, the learned Counsel for the wife, would pyramid his arguments, the pith and marrow of them would run thus: The entire reading of Section 14 of the Hindu Marriage Act, 1955, would connote and denote, project and portray that the obtention of such leave was not mandatory. So far this case is concerned, it is not that wilfully the H.M.O.P.No.82 of 2011 was filed within one year without obtaining leave and unwittingly alone, the petition for divorce was filed without filing the application under Section 14 of the Hindu Marriage Act, 1955, narrating the exceptional circumstances. As such, the lower Court taking into consideration the pro et contra, thought that it would be a mere waste of time to reject the H.M.O.P., and thereby paving the way for the wife to file a fresh petition for divorce on the same grounds.
10. The learned Counsel for the wife also cited various decisions in support of his arguments.
11. The points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date of marriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
Point Nos.(i) and (ii)
12. At the outset itself, I would like to fumigate my mind with the decisions cited by both sides.
13. The learned Counsel for the husband placed reliance on the following decisions:
(i) Swamidoss Joseph v. Miss Edward reported in A.I.R. 1955 MADRAS 341.
(ii) Vinod v. Manju reported in AIR 1982 DELHI 592.
(iii) Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC).
(iv) Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
14. The learned Counsel for the wife relied on the following precedents:
(i) Rabindra Nath Mukherjee v. ITI Mukherjee alias Chatterjee reported in CDJ 1991 Cal HC 017.
(ii) Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435.
(iii) Manisha Jha (Smt). v. Kunal Kanti Jha reported in CDJ 1998 Cal HC
019.
(iv) Kailash v. Nanhku and others reported in (2005) 4 Supreme Court Cases
480.
(v) R.N.Jadi and Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(vi) Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140.
(vii) Gijoosh Gopi, Alappuzha v. S.Sruthi, Alappuzha reported in CDJ 2012 Ker HC 832.
15. A mere running of the eye over the aforesaid precedents would highlight and spotlight the fact that the Division Bench of the Calcutta High Court in Rabindra Nath Mukherjee v. ITI Mukherjeealias Chatterjee reported in CDJ 1991 Cal HC 017, held that seeking leave of the Court within one year to file the petition for divorce from the date of marriage, was only directory and not mandatory and the said decision was followed by the learned Single Judge of this Court inIndumathi v. Krishnamurthy reported in 1998 (III) MLJ 435. The aforesaid decision of this Court is also followed by the learned Single Judge of the Calcutta High Court in Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140. However, the Division Bench of the Karnataka High Court took a different view of the matter in Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
16. As such, the decision of the learned Single Judge of this Court following the decision of the Division Bench of the Calcutta High Court, is very much available before me. Normally, the decisions rendered by the learned Single Judge of this Court should be followed by another learned Single Judge of this Court and the judicial discipline warrants such a procedure.
17. However, the learned Counsel for the husband would place reliance on the decision of the Division Bench of the Karnataka High Court, which is against the decision of the learned Single Judge of this Court as well as the Division Bench of the Calcutta High Court Simply because, a subsequent Division Bench of Karnataka High Court is in variance with the decision of the learned Single Judge of this Court and the Division Bench of the Calcutta High Court, I am not bound to simply follow the said judgment of the Karnataka High Court. The learned Single Judge of this Court placed reliance on the decision of the Division Bench of Calcutta High Court. As such, two Division Benches of two different High Courts have two different views and the learned Single Judge of this Court followed the view of one of such decisions of the Division Benches and wherefore, I am justified in following the decision of the learned Single Judge of this Court and consequently, the decision of the Division Bench of the Calcutta High Court.
18. Over and above that, I would also like to independently furnish my own views in this matter.
19. My mind is redolent and reminiscent of the following legal maxims:
(i) “Verba generalia generaliter sunt intelligenda”. [General words are to be understood generally.]
(ii) “Verba ita sunt intelligenda, ut res magis valeat quam pereat.” [Words are to be so understood that the matter may have effect rather than fail.]
(iii) “Maledicta expositio quae corrumpit textum”. [It is a cursed construction that corrupts the text.]
(iv) “Absoluta sententia non indiget expositore”. [A simple proposition needs no expositor.]
20. I would also like to extract hereunder the relevant excerpt from the famous treatise “Maxwell on The Interpretation of Statutes [Twelfth Edition by P. St. J. Langan]”:
Chapter 5 – Restrictive Construction:
“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended.”
One other excerpt from the same treatise would run thus: “Section 12 (3) of the Matrimonial Causes Act 1950 provided that if the spouse obtaining a decree nisi of divorce did not make an application for it to be made absolute six months after the trial, then the other spouse could make application within a further period of three months and, if the circumstances warranted, obtain a decree absolute. The Court of Appeal held that this did not oust the jurisdiction of the court to substitute a decree of judicial separation for a decree nisi: “had it been the intention of the legislature to revoke this jurisdiction, it would have been done in a clearer way than by inference from the subsection.”
21. On a mere running of the eye over those legal maxims and the principles found enshrined in the aforesaid famous treatise, I am of the view that generally, the time limit prescribed in the procedural laws are directory and not mandatory and further that they are only by way of taking a cue that the time limit prescribed under Section 14 of the Hindu Marriage Act, 1955, will not cut at the jurisdiction of the Court. However, the learned Counsel for the husband placing reliance on the decision of the Honourable Apex Court in Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC), would submit that so far Marriage Laws are concerned, time stipulated cannot be taken as directory, but it should be taken as mandatory.
22. I would like to point out that in the aforesaid decision of the Honourable Apex Court relating to Section 13-B of the Hindu Marriage Act, 1955, what was found stressed is that the consent of both sides should be essential at both stages, viz., at the time of jointly presenting the petition and at the time of obtention of divorce after the prescribed period of six months. There could be no quarrel over such a proposition. However, Section 14 of the Hindu Marriage Act, 1955, is on a different footing.
23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:
“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
25. At this juncture, I would like to recollect the following decisions:
(i) Kailash v. Nanhku reported in 2005 (3) CTC 355.
(ii) Rani Kusum v. Kanchan Devi reported in (2005) 6 Supreme Court Cases
705.
(iii) Salem Advocate Bar Association v. Union of India reported in (2005) 6 Supreme Court Cases 344.
(iv) R.N.Jadi & Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(v) Zolba v. Keshao and others reported in (2008) 11 Supreme Court Cases
769.
26. The pith and marrow, the gist and kernel of the aforesaid precedents is that whenever any condition is stipulated in law in negative language, then that itself is not sufficient to hold that the law contemplated the said provision as mandatory, but the consequences of such non-adhering to the time limit also should be found spelt out in the statutory provision. Under Order VIII Rule 1 of the Code of Civil Procedure, even though in negative language, the provisions are found spelt out, the consequences were not found spelt out. Hence, the Honourable Apex Court consistently held that such time stipulated cannot be taken as mandatory, so much so also, here under Section 14 of the Hindu Marriage Act, 1955, the legislators in their wisdom thought not to impose any consequences of such non-adherence to the time limit.
27. On the other hand, as correctly held by the learned Single Judge of this Court earlier, in the decision cited supra, even a person who got leave by misrepresentation was given the benefit of divorce, but that would take effect after one year from the date of marriage. Hence, I am of the considered view that the decision of the learned Single Judge of this Court in Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435 with great respect is the binding precedent on the point concerned.
28. The learned Counsel for the husband also referred to the Halsbury’s Laws of England – Fourth Edition – by Lord Mackay of Clashfern – Volume 29(3) – 2001.
29. I am of the view that when the earlier decision of this Court is clear and unambiguous on the point, I need not dilate further on that issue.
30. On factual basis, the learned Counsel for the husband would try to canvass his case by pointing out that so far the exceptional circumstances mandated in the affidavit of the wife, are not really exceptional circumstances, but they are only relating to alleged dowry harassment and cruelty. Whereas the learned Counsel for the wife would submit that the allegations found spelt out in the affidavit accompanying the application filed by the wife seeking ex post facto leave were of such a nature that they were so horrible for the wife who is a Doctor by profession.
31. The wife in her affidavit accompanying the application in I.A.No.26 of 2012, set out thus:
“4. I submit that even before the solemnization of marriage, the respondent and his family members demanded 120 sovereign of golden jewels, Rs.8,00,000/- cash and stridhan articles worth about Rs.2,00,000/- from my parents. My parents were put under severe strain and mental agony as they had to arrange the above dowry before the solemnization of marriage. Only after receiving the cash amount of Rs.8,00,000/- on hand one day prior to the marriage, the respondent has agreed to perform the marriage.
5. I submit that after marriage, the conjugal home was set up at Arupukkotai in the house of respondent. At the time of living at Arupukkottai, the respondent has demanded a further dowry of Rs.60,00,000/- from me by saying that his father has borrowed huge amounts from outer sources as a loan to get higher education for him and hence, he has to settle those amounts by getting dowry amount from me. The respondent added that he had married me for money alone. The respondent’s father, and his father’s brother namely, Gunasekaran, the respondent’s brother and sister have often harassed and tortured me to get money to the tune of Rupees Sixty lakhs and a Honda city car from me.
6. The Respondent and his family members often threatened me that they will not allow me to live peacefully, unless I brought the above said dowry amount from my parents I lived at Hosur under unsafe condition under threat to life from the respondent. I submit that the respondent used to demand dowry continuously without any basis, and hence, because of the above said attitudes of the respondent, I could not lead a peaceful family life.
7. I submit that I am living separately till date. Even though my parents conducted peace talks with the respondent and his family, all the efforts made by them had gone on vain and the respondent firmly states that unless his additional dowry demand of Rupees Sixty Lakhs and Honda city car and a house at Arupukkottai is fulfilled, there is no possibility of unite with the petitioner.
8. It is submitted that finally on 10.3.2011, a peace talk was arranged by the respondent with caste leaders, relatives and elders. In that peace talks, the respondent and his family members told that unless, their additional dowry demands are fulfilled, there is no other way except to dissolve the marriage by way of divorce. Hence, we filed a divorce petition by mutual consent before this Hon’ble Court without any prior condition. More over, a divorce agreement was executed between me and the respondent on 10.3.2011 itself, before the competent witnesses and the respondent has put his left hand thumb impression in the said agreement engrossed in Rs.50/- Stamp paper. On the same date itself, the respondent has got the signatures of me and my parents in several blank papers and unfilled stamp papers. Even though the respondent has agreed to return the stridhan articles and cash amount in the Court. The respondent has got back his “Thali” tied to me and all the formalities were done before the above said competent witnesses on 10.3.2011.
9. I submit that myself and respondent has filed a divorce petition under mutual consent before this Hon’ble Court in H.M.O.P.No.50 of 2011. To my shock and surprise, the respondent told me that unless the house property at Arupukkottai is purchased and given in his name for the tune of Rs.40,00,000/-, he will not accept for mutual divorce. As the respondent’s illegal demand could not be fulfilled by me, I filed the present H.M.O.P.No.82/2011.”
(extracted as such.)
32. As such, based on the above narration of facts, she contended that because of exceptional circumstances found set out therein, she was constrained to file the H.M.O.P.No.82 of 2011, within a period of one year from the date of marriage. No doubt, those allegations are only allegations and they were not proved. But, in my considered opinion, those are all serious allegations of exceptional nature and the lower Court also treated as exceptional circumstances, warranting no interference by this Court.
33. It is a singularly singular case wherein the husband and the wife both happened to be Doctors in medical profession and from the view point of the wife, the conduct of the husband in treating her constituted the exceptional circumstances and utmost hardship and discomfiture. The lower Court being the first Court of facts, after considering the allegations and counter allegations, thought fit to virtually grant ex post facto leave and this Court being the revisional Court is having no reason to interfere with the same.
34. As suggested by the learned Counsel for the husband, if the H.M.O.P., has to be dismissed, it would not be for anything, but for the wife to file a fresh H.M.O.P., on the same grounds. As such, the same process already underwent would enure. The multiplicity of proceedings should be avoided and obliterated. No doubt, the sanctity of the marriage should be preserved. Soon after the marriage, without taking steps for reconciliation, etc, and having sufficient time for reflection, they should not be allowed to approach the Court for divorce and in the meantime, one other aspect, this Court has to see. Unwittingly, if a person filed a petition for divorce without seeking leave and much water has already flown under the bridge in dealing with the said petition, it would not be proper to dismiss that petition on the technical ground after lapse of two years as in this case and it would amount to throwing the baby along with the bathe water.
35. While holding so, I am of the view that exceptions should be exceptional and it should not become the rule. So far this case is concerned, I would like to find fault with the lower Court for numbering the H.M.O.P., without insisting for an application seeking leave under Section 14 of the Hindu Marriage Act, 1955.
36. My mind is redolent of the following legal maxims:
(i) “Actus curiae neminem gravabit”. [An act of the court will prejudice no one.]
(ii) “Quod fieri non debet, factum valet.” [What ought not to be done, when done, is valid.]
37. The lower Court should have returned the petition for divorce when it was presented well within one year from the date of marriage, but it has not been done so and it is only the fault of the Court. Because of the fault of the Court, the party concerned at a later date should not suffer.
38. In this connection, I could also fruitfully refer to the following legal maxims:
(i) “Nul prendra advantage de son tort demesne”. [No one shall take advantage of his own wrong.]
(ii) “Nullus commodum capere potest de injuria sua propria”. [No one can obtain an advantage by his own wrong.]
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition for divorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
40. I take it as an opportunity to mandate all the Courts below concerned that hereafter whenever any petition for divorce is filed within a period of one year from the date of marriage, the Courts should invariably return that petition without numbering it and unless leave is obtained, such petition for divorce should not be entertained. Point Nos.(i) and (ii) are answered accordingly.
41. In the result, both the Civil Revision Petitions are dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
42. On hearing the order pronounced, the learned Counsel for the husband would seek oral leave of this Court so as to enable his client to prefer appeal to the Honourable Apex Court. I am of the considered view that since the order is passed based on the earlier decision of the learned Single Judge of this Court which is based on the decision of the Division Bench of Calcutta High Court, no leave is required.
rsb To
1.The Sub Court, Aruppukottai.

 

 

Divorce on ground of mental cruelty and schizophrenia.

divorce on ground of mental cruelty and schizophrenia.

Explanation – In this clause, –
(a) the expression “mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
Explanation – In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (I-A) Either party to a marriage, whether solemnized before or after the commencement of this Act may also present a petition for the dissolution of the marriage by a decree of divorce on the ground –
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
———————————————————————————————————–
Supreme Court of India
Vinita Saxena vs Pankaj Pandit on 21 March, 2006
Bench: Ruma Pal, Dr. Ar. Lakshmanan
           CASE NO.:
Appeal (civil)  1687 of 2006

PETITIONER:
Vinita Saxena                      

RESPONDENT:
Pankaj Pandit          

DATE OF JUDGMENT: 21/03/2006

BENCH:
Ruma Pal & Dr. AR. Lakshmanan

JUDGMENT:
J U D G M E N T (Arising out of S.L.P.(C) No.26418 of 2004) Dr. AR. Lakshmanan, J.
Leave granted.
The above appeal was filed by the appellant, wife of the respondent herein, against the judgment and final order dated 10.9.2004 passed by the High Court of Delhi in F.A.O. No. 235 of 2002 whereby the Civil Writ Petition filed by the appellant was dismissed.
The short facts are as follows:
The marriage between the appellant-Vinita Saxena and the respondent-Pankaj Pandit was soleminzed on 7.2.1993 as per Hindu rites and customs. No child was born out of wedlock. The marriage, according to the appellant, lasted for five months and was never consummated on account of the fact that the respondent was incapable of performing his matrimonial obligations. According to the appellant, from the first day of the marriage, the respondent’s mother treated the appellant with utmost cruelty both mental and physical and that the reason for cruelty was the respondent’s mental disorder. The respondent’s case is a case of Paranoid Schizophrenia and the appellant discovered only after the marriage that the respondent was under constant treatment and observations of different doctors even prior to the marriage for the said ailment. Though the appellant knew the respondent prior to her marriage, in fact, it is only after the marriage, the appellant realised and discovered the mental disorder of the respondent. The appellant was never told by the respondent nor his parents that he was suffering from such serious mental disorder and that he was under the treatment and used to take strong medicines before the marriage. According to Dr. C.R. Samanta, who was a consultant psychiatrist at Aashlok Hospital, the respondent was a case of Schizophrenia and depression. On 4.7.1993, the appellant tried to discuss regarding the problems she was facing with the respondent and her mother- in-law, who objected strongly and accused the appellant of defaming the respondent. At her instance, the appellant was beaten mercilessly by the respondent, which made him nervous to the extent that he consumed “Baygon Spray” to commit suicide. The appellant and her brother immediately took the respondent to the hospital in order to save the respondent’s life. Again, Dr. C.R. Samantha prescribed certain medicines i.e. (1) Triperidol (2) Pacitane (3) Prodep to the respondent. The respondent was hospitalised for four days at Aashlok Hospital, Safdarjung Enclave and was discharged after giving proper treatment on 7.7.1993. According to the appellant, Triperidol is given in case of acute and chronic psychoses anxiety disorders, mania, Schizophrenia as per the medical advise. The situation further became worse on 8.7.1993 and 9.7.1993. Again on the instigation of the respondent’s mother, the respondent slapped and abused the appellant mercilessly and she was not even allowed to have food that day and the next day morning i.e. on 9.7.1993. On 9.7.1993, the appellant was pushed and kicked out of the matrimonial home by her mother-in-law and the respondent and thereafter, the appellant was not permitted to return again.
The appellant filed H.M.A. Petition on 30.6.1994 against the respondent for dissolution of marriage under Section 13(1)(1-a) and (iii) of the Hindu Marriage Act,1955 hereinafter referred to as “the Act” on the grounds of mental and physical cruelty and insanity before the Court of District Judge at Delhi. The trial Court vide its order dated 15.5.1993, relying on the facts and averments made by the parties as well as taking the medical documents placed on record observed that a letter of request should be written to the Medical Superintendent, L.N.J.P. Hospital to constitute a panel of doctors to examine the respondent and to report about his mental state. However, this order was subsequently set aside by the High Court in a Revision Petition filed by the respondent. After the marriage had broken down the appellant pursued further studies and completed M.S. (Structural Engineering) from IIT Delhi and in 1996, left for her Ph.D. programme to U.S.A. Father of the appellant, J.S. Saxena, deposed as PW-II and the appellant as PW-I and Dr. D.S. Arora, Medical Superintendent, Aashlok Hospital and Dr Kuldeep Kumar of Safdarjung Hospital recorded their statement as PW-III and PW-IV respectively supporting the case of the appellant. The respondent, however, got only his statement recorded and before his cross-examination could be concluded, deliberately did not appear in the witness box to complete his deposition. The trial Court, vide order dated 19.3.2001, dismissed the petition filed by the appellant under Section 13(1)(1-a) and (iii) of the Act for the grant of decree of divorce. Being aggrieved by the said order, the appellant filed an appeal before the High Court. The High Court vide order dated 10.9.2004 dismissed the appeal filed by the appellant holding that the respondent is not suffering from Schizophrenia and that there is insufficient material on record to establish the cause of cruelty and further held that the incidents of cruelty is not so grave which come within the scope of concept of cruelty. The High Court also held that the testimonies of the doctors examined by the appellant to prove that the respondent was suffering from Schizophrenia cannot be looked into for the reason that the respondent was not under the treatment of the above doctors. Aggrieved by the said order, the appellant filed this appeal by way of special leave petition before this Court. The respondent filed a counter affidavit. It is stated in the counter affidavit that the special leave petition is devoid of any merit inasmuch as the Courts below have given findings of fact in favour of the respondent and the Courts below have rejected the pleas of the appellant on the ground that she has not made out any case for grant of divorce. It was submitted that the appellant even before the marriage was having intimacy with the respondent from 1986 to 1993 and she did not find any abnormality in the behaviour of the respondent. It was also submitted that the appellant has not made out any case seeking divorce on the ground of causing cruelty to her inasmuch as she has failed to prove any instance leading to causing such cruelty to her by the respondent. It was submitted that the respondent is willing to take the appellant and keep her happy to the fullest and it is the desire of the respondent that the marriage should not break on the ground that she is building up her career in America for the past 12 years. Since concurrent findings of fact is in favour of the respondent, the appellant ought not to be stated that the respondent and his mother were involved in causing cruelty to her and that the Courts below have also disbelieved the version of the appellant that the cruelty was caused by the respondent due to his mental disorder. It was further contended that the appellant did not lead any evidence to prove as a matter of fact that the respondent was suffering from Schizophrenia and that the appellant has filed the petition deliberately and wilfully and with a view to harass the respondent and his mother. It was also contended that the mere branding of spouse as Schizophrenic is not sufficient and that the degree of mental disorder of the spouse must be proved to be such that the appellant spouse cannot be reasonably be expected to live with the other. It was also submitted that from the evidence and pleadings, it has clearly been stated that the appellant was having sex with the respondent without any problem and there is no truth in the allegation made by the appellant. The other allegations mentioned in the Divorce Petition have not been proved at all and that the appeal filed by the appellant deserves to be rejected. We heard Ms. Kamini Jaiswal, learned counsel appearing for the appellant-wife and Mr. Dhruv Mehta, learned counsel appearing for the respondent-husband. We have perused the pleadings, annexures filed along with the appeal and the orders passed by the courts below and the grounds of appeal. Learned counsel for the appellant while reiterating the averments made in the appeal submitted the following grounds for granting divorce as prayed for by the appellant-wife :
1) Non-consummation of the marriage itself would constitute mental cruelty to a married woman.
2) The respondent attempted to commit suicide also amounts to mental cruelty and harassment.
3) The appellant has lived only for five months after the marriage and she was mercilessly beaten by the respondent and his mother.
4) There was absolutely nothing to show that the documents and prescription given by the doctors have been concocted. They are the official records of the Hospital.
5) The medical prescriptions and the evidence of doctors clearly illustrate that the respondent was under the treatment of Dr. Samantha and was a case of Paranoid Schizophrenia.
6) The respondent, before his cross examination could be concluded, deliberately did not appear in the witness box to complete his deposition and his evidence had to be closed.
7) The appellant was denied the matrimonial bliss of physical relation by the respondent because of his incompetency which itself constitute cruelty for a married woman.
8) The threat to commit suicide by the respondent amounts to cruelty and the Courts below took cognizance of the fact that the respondent consumed “Baygon spray”.
9) Because Dr. Samantha was not alive, the medical record authored by him can only be proved by secondary evidence though Dr. D.S. Arora, medical Superintendent who certified on oath that the respondent was admitted in Aashlok Hospital and stated that he had brought the records in respect of Pankaj Pandit. He also identified the signatures of Dr. Samantha and the medical prescriptions of his having treated the respondent have also been produced and proved by him where it had been categorically stated that the respondent is suffering from Paranoid Schizophrenia.
10) Likewise on the ground of non-availability of Dr. Abhyankar, who had authored the medical prescription as he was no more in service of the hospital cannot be fatal to disregard the evidence of the other doctor, who produced and proved the entire record.
11) The marriage between the appellant and the respondent hardly lasted for five months and both of them are living separately for the last 13 years. Learned counsel appearing for the appellant cited the following decisions:
1) Shrikant Anandrao Bhosale vs. State of Maharashtra, (2002) 7 SCC 748,
2) A. Jayachandra vs. Aneel Kaur, (2005) 2 SCC 22,
3) Smt. Uma Wanti vs. Arjan Dev , AIR 1995 P&H 312
4) Harbhajan Singh Monga vs. Amarjeet Kaur AIR 1986 MP 41
5) Mrs. Rita Nijhawan vs. Shri Balkishan Nijhawan, AIR 1973 Delhi
6) Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari, AIR 1970 SC
137.
7) Vijay Kumar Ramchandra Bhate vs. Neela vijaykumar Bhate, AIR 2003 SC 2462
8) B.N. Panduranga Shet vs. N. Vijaylaxmi, AIR 2003 Karnataka 357 Mr. Dhruv Mehta, learned counsel appearing for the respondent, per contra, after referring to the grounds of divorce and the findings recorded by the trial Court and the High Court which has affirmed the findings of the trial Court, submitted that in order to make out a ground for divorce under Section 13(1)(iii) of the Act, it is not necessary to establish that the respondent is suffering continuously or intermittently from mental disorder but it must further be established that it is of such a kind and to such an extent that the appellant cannot be reasonably be expected to live with the respondent. In other words, the burden is not discharged by merely establishing that the respondent is suffering from mental disorder which in the present case would include Schizophrenia by virtue of the Explanation to the said provision but the appellant must further lead evidence to establish that the mental disorder is of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent.
According to learned counsel for the respondent, the above contention finds support from a decision of this Court in Ram Narain Gupta vs. Smt. Rameshwari Gupta, 1988(4) SCC 247. For ready reference, the relevant paras from the said judgment are as under:
“20. The context in which the ideas of unsoundness of ‘mind’ and ‘mental disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the ‘mental disorder’. Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law. xx xx xx
28. The reasoning of the High Court is that the requisite degree of the mental disorder which alone would justify dissolution of the marriage has not been established. This, it seems to us, to be not an unreasonable assessment of the situation – strong arguments of Shri Goel to the contrary notwithstanding.
xx xx xx
30. ..the burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.
33. This medical concern against too readily reducing a human being into a functional non entity and as a negative unit in family or society is law’s concern also and is reflected, at least partially, in the requirements of Section 13(1)(iii). In the last analysis, the mere branding of a person as schizophrenic will not suffice. For purposes of Section 13(1)(iii) ‘schizophrenia’ is what schizophrenia does.”
It was further submitted that the aforesaid judgment of this Court has been followed by the Karnataka High Court in the case of B.N. Panduranga Shet vs. N. Vijayalaxmi, (supra). Learned counsel also relied on the decision of the Calcutta High Court in the case of Rita Roy vs. Sitesh Chandra AIR 1982 Calcutta 138 and the decision of the Himachal Pradesh High Court reported in (1995) DMC 71 (DB). Learned counsel also cited the judgment of this Court in Rakesh K. Gupta vs. Ram Gopal Agarwala & Ors., AIR 2005 SC 2426 for the proposition that even in a custody dispute between the husband and wife wherein it was alleged by the husband that the wife is suffering from Paranoid Schizophrenia, this Court still awarded custody of the child to the mother.
According to the learned counsel, the evidence which has been brought on record by the appellant is wholly insufficient to infer that the respondent was suffering from the said mental disorder and the doctors who are alleged to have treated the respondent have not been examined as witnesses by the appellant and what has been brought on record are certain prescriptions made by the said doctors and the same are sought to be proved by examining the Medical Superintendent of Aashlok Hospital, Safdarjung Enclave. Therefore, he submitted that in view of the above fact, no inference can be drawn that the respondent was suffering from Paranoid Schizophrenia and that the appellant has not been discharged of the burden as required by the statutory provision. Learned counsel contended that the words used in sub-clause (iii) of Section 13(1) to the effect that “mental disorder of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent” must be given full effect as it is a well accepted principle of statutory interpretation that a Court must make every effort to give effect to all words in a statute since Parliament cannot be held to have been wasting its words or saying something in vain. Learned counsel, for this proposition, relied on the following two decisions of this Court:
(a) Shin Etsu Chemical Company Ltd. Vs. Aksh Optifibre Ltd., (2005) 7 SCC 234.
(b) Union of India vs. Popular Construction , (2001) 8 SCC 470 Concluding his submissions, learned counsel submitted that the appellant having failed to establish the aforementioned requirement of the statute, the appeal must fail on this ground.
In Re : Cruelty It was submitted that in order to make out a ground for divorce under Section 13(1)( i-a) of the Act, the conduct complained of should be grave and weighty so as to come to the conclusion that the appellant 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”. For this proposition, he relied on the judgment of this Court in A. Jayachandra vs. Aneel Kaur (supra). Para 13 of the aforementioned judgment is as under:
“13. ..but before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it “
It was argued that the trial Court, after examining the evidence, has come to the conclusion that the acts complained of are not such as would constitute cruelty and in any event the ground for divorce under Section 13(1)(i-a) is not made out. It was submitted that the trial Court had occasioned to see the demeanour of witnesses and, therefore, the view taken by the trial Court unless it can be said to be perverse should not be faulted with. It was also contended that the approach in such cases should be to perverse the matrimonial home. The judgment in the case ofSavitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73 was relied on for this purpose. Answering the contention raised by the counsel for the appellant that the parties have not lived together for a long time and therefore, this is a fit case to pass a decree of divorce, learned counsel for the respondent, submitted that this is a wholly untenable argument and has to be rejected by this Court. For this, he relied on the ruling of this Court in the case of A. Jayachandra vs. Aneel Kaur (supra). Concluding his arguments, learned counsel appearing for the respondent submitted that both the trial Court and the High Court have recorded concurrent findings and have rejected the prayer of the appellant to grant decree of divorce under Section 13(1)(i-a) and (iii) of the Act and, therefore, this Court under Article 136 of the Constitution of India cannot interfere with the said findings unless it is established that the findings recorded by the trial Court and the High Court are perverse. Arguing further, he submitted that the findings of the trial Court are based on the consideration of the entire evidence and well reasoned and in similar circumstances, this Court refused to interfere with the concurrent findings of fact arrived at by the Courts in Savitri Pandey vs. Prem Chandra Pandey (supra).
We have given our thoughtful and anxious consideration for the rival submissions made by the respective counsel appearing on either side. The appellant filed a petition for divorce underSection 13(1)(i-a) and (iii) of the Act on the ground of mental and physical cruelty. It is also her case that on account of Paranoid Schizophrenia that the respondent was suffering from, the appellant could not be reasonably expected to live with the respondent. Section 13 (1)(i-a) and (iii) are reproduced hereunder:
“13. Divorce – (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or * * * * *
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation – In this clause, –
(a) the expression “mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
Explanation – In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (I-A) Either party to a marriage, whether solemnized before or after the commencement of this Act may also present a petition for the dissolution of the marriage by a decree of divorce on the ground –
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground –
(i) in the case of any marriage solemnized before the commencement of this act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) , or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation – This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.
It is not in dispute that the marriage has lasted hardly for five months and was never consummated on account of the fact that the respondent was incapable of performing his matrimonial obligations. The appellant has examined herself as PW-1. She has specifically stated in her deposition that the marriage was not consummated at all. It has further come out in her deposition that she accompanied the respondent at AIIMS and met Prof. Dr. Prema Bali, Sexologist and Marriage Counsellor. In her deposition, it had also come out that the Doctor informed her that the respondent cannot perform the marital obligations. She was also informed by the said Doctor that the respondent was a Psychopathic case and he has no power of concentration. She was also informed that the disease is of incurable in nature. The appellant has further deposed that respondent kept on sleeping for three days immediately after solemnization of marriage and the appellant was told that she should not disturb him. It was further stated in her evidence that on 4.7.1993, the appellant was blamed for the respondent’s illness and was mercilessly beaten up and on the same day the respondent consumed “Baygon Spray” to commit suicide and he was taken to Aashlok Hospital, Safdarjung Enclave by the appellant and her brother. In her cross-examination, the appellant has stated that though they were studying together in the Engineering College, however, there were no special meetings between them except meeting in the class. It has also come on record that there was no intimacy between the appellant and the respondent. The appellant has emphatically denied the allegation about the intimacy between the appellant and the respondent prior to marriage w.e.f. 1987. She also stated on oath that it was a marriage though of her choice but solemnized only after her parents had given the consent. In the cross- examination, the respondent has not been able to shake or destroy the case of the appellant.
In support of her case, PW-2, J.S. Saxena father of the appellant, was examined. He supported the appellant’s case and corroborated her evidence. Even in the cross-examination of PW-2, there is no material change or inconsistency. With regard to the grant of cruelty, there is deposition of the appellant and her father on record which clearly establishes and proves that the appellant was treated with cruelty by the respondent and his mother. With regard to the plea of mental insanity i.e. Section 13(1)(iii), the appellant adduced the evidence of Dr. D.S. Arora, Medical Superintendent, Aashlok Hospital as well as Dr. Kuldeep Kumar of Safdarjung Hospital. Dr. D.S. Arora, a summoned witness produced the entire record pertaining to the respondent. He exhibited the case of the respondent maintained by Dr. C.R. Samantha. Dr. D.S. Arora identified the signatures of Dr. C.R. Samantha and proved Ex. PW-3/1. The original record of respondent was produced in the Court. Dr. D.S. Arora also proved the prescriptions Ex. PW-3/2 and Ex. PW-3/3. Ex. PW-3/5 was the prescription written by Dr. D.S. Arora and it was bearing his signatures. The entire medical history and record of the respondent pertaining to his medical illness, his visit and admission to Aashlok Hospital on 4.7.1993 and discharge on 7.7.1993 as well as the case history of the respondent maintained by Dr.C.R. Samantha were duly proved and exhibited. According to the medical record, the respondent was admitted with reference to a case of Psychopathic and depression for the last fortnight, now admitted for disturbed consciousness. He was suggested to take Triperidol medicine. The other prescription has been authored by Dr. D.S. Arora who stated that the respondent had consumed “Baygon Spray”. It was also specified that the respondent is a known case of depression. Medicine ‘Triperidol’ was suggested to be administered to him. With regard to the consumption of “Baygon Spray”, a stomach wash was carried out upon the respondent and he was administered injections ‘Atropine’, and ‘Dextrose-1/V and PAM 1 to 1/V. The evidence of Dr. D.S. Arora and the record signed by Dr. C.R. Samantha are admissible in evidence and has been legally proved. The evidence of Dr. Kuldeep Kumar of Safdarjung Hospital also establishes the case of mental insanity and the fact that the respondent was a case of Paranoid Schizophrenia. The said Doctor produced the original record and made necessary deposition. He had brought the originals during his examination and it is recorded that the respondent had visited the Psychiatric Ward on 12.12.1992 along with his mother. Dr. Abhyankar also recorded about the history of respondent’s illness. It was also recorded by the said Doctor that the respondent suffers from delusion of persecution and reference effect and on the physical examination it had been observed that the respondent has clear systematized delusion of persecution and reference and, therefore on the review it is clear that the respondent is suffering from Paranoid Schizophrenia. The medical record of the respondent maintained by the Safdarjung hospital (Outdoor Patient Department) has been established that the respondent visited Hospital on 21.12.1992 and was advised for psychological testing. It was observed in a medical sheet that the respondent was initially diagnosed for psychosis. However, on subsequent visits and after detailed examination it has been confirmed that he suffers from Paranoid Schizophrenia. The appellant has also produced on record a communication dated 9.5.1994 addressed by Professor Dr. Prema Bali, who was working in the Institute of Sexology and Marriage Counselling. Dr. Prema Bali is the relative of respondent and she has communicated to the appellant that the respondent has a psychiatric problem as his case is a case of Paranoid Schizophrenia.
It would be pertinent to observe that there is no evidence whatsoever adduced by the respondent or on his behalf. In fact, after recording of the examination-in-chief and part cross-examination, the respondent refused to come in the witness box and ran away. The observation has been made by the trial Court in the proceedings. A RESEARCH ON THE DISEASE “Schizophernia is one of the most damaging of all mental disorders. It causes its victims to lose touch with reality. They often begin to hear, see or feel things that aren’t really there (hallucinations) or become convinced of things that simply aren’t true (delusions). In the paranoid form of this disorder, they develop delusions of persecution or personal grandeur. The first signs of paranoid schizophrenia usually surface between the ages of 15 and 34. There is no cure, but the disorder can be controlled with medications. Severe attacks may require hospitalization.
The appellant has filed Annexures L,M,N,O,P and Q which are extracts about the aforesaid disease. The extracts are sum and substance of the disease and on a careful reading it would be well established that the evidence and documents on record clearly make out a case in favour of appellant and hence appellant was entitled to the relief prayed. In the memorandum and grounds of Appeal, some salient features of the disease have also been specified. Some of the relevant part of the extracts from various medical publications are reproduced herein below:
What is the disease and what one should know?
* A psychotic lacks insight, has the whole of his personality distorted by illness, and constructs a false environment out of his subjective experiences.
* It is customary to define ‘delusion’ more or less in the following way. A delusion is a false unshakeable belief, which is out of keeping with the patient’s social and cultural background.’ German psychiatrists tend to stress the morbid origin of the delusion, and quite rightly so. A delusion is the product of internal morbid processes and this is what makes it unamenable to external influences. * Apophanuous experiences which occur in acute schizophrenia and form the basis of delusions of persecution, but these delusions are also the result of auditory hallucinations, bodily hallucinations and experiences of passivity. Delusions of persecution can take many forms. In delusions of reference, the patient feels that people are talking about him, slandering him or spying on him. It may be difficult to be certain if the patient has delusions of self-reference or if he has self-reference hallucinosis. Ideas of delusions or reference are not confined to schizophrenia, but can occur in depressive illness and psychogenic reactions.
Causes The causes of schizophrenia are still under debate. A chemical imbalance in the brain seems to play a role, but the reason for the imbalance remains unclear. One is a bit more likely to become schizophrenic if he has a family member with the illness. Stress does not cause schizophrenia, but can make the symptoms worse. Risks Without medication and therapy, most paranoid schizophrenics are unable to function in the real world. If they fall victim to severe hallucinations and delusions, they can be a danger to themselves and those around them.
What is schizophrenia?
Schizophrenia is a chronic, disabling mental illness characterized by:
* Psychotic symptoms * Disordered thinking * Emotional blunting How does schizophrenia develop?
Schizophrenia generally develops in late adolescence or early adulthood, most often:
* In the late teens or early twenties in men * In the twenties to early thirties in women What are the symptoms of schizophrenia?
Although schizophrenia is chronic, symptoms may improve at times (periods of remission) and worsen at other times (acute episodes, or period of relapse).
Initial symptoms appear gradually and can include:
* Feeling tense * Difficulty concentrating * Difficulty sleeping * Social withdrawal What are psychotic symptoms?
Psychotic symptoms include:
* Hallucinations: hearing voices or seeing things * Delusions : bizarre beliefs with no basis in reality (for example, delusions of persecution or delusions of grandeur) These symptoms occur during acute or psychotic phases of the illness, but may improve during periods of remission. A patient may experience * A single psychotic episode during the course of the illness * Multiple psychotic episodes over a lifetime * Continuous psychotic episodes During a psychotic episode, the patient is not completely out of touch with reality. Nevertheless, he/she has difficulty distinguishing distorted perceptions of reality (hallucinations, delusions) from reality, contributing to feelings of fear, anxiety, and confusion. The disorder can prove dangerous for some – especially when symptoms of paranoia combine with the delusional symptoms of schizophrenia. In fact, doctors say paranoid schizophrenics are notorious for discontinuing the treatments which help control their symptoms.
The Indian Drug Review has specified the Drug Trifluoperidol as a sedative and tranquilizer. With regard to administration it has been suggested that it is given to patient suffering from Schizophrenia. Incidentally this drug was being administered on medical advice to the respondent.”
In our view, the trial Court failed to appreciate the uncontroverted evidence of the appellant who had proved the case on every count. It has been established beyond doubt by the Medical doctors who had deposed as witnesses and brought the original medical record of the respondent that the respondent is suffering from mental disorder. Further ground for grant of divorce on the plea of mental insanity/mental disorder is different than cruelty. The appellant, in our view, had proved beyond doubt that the respondent suffered from mental disorder and that the appellant suffered cruelty by and at the behest of the respondent.
Learned single Judge of the High Court failed to appreciate that in the absence of any evidence led by the respondent, the appellant’s evidence had to be relied upon and on the basis of the evidence, the decree for divorce was bound to be granted in favour of the appellant. The appellant had also given specific instances of cruelty which clearly establish that she had a reasonable apprehension that it will be harmful or injurious for her to live with the respondent.
LEGAL PROPOSITION ON THE ASPECT OF CRUELTY It is settled by catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the Section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
The word ‘cruelty’ has not been defined and 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 and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may 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.
The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance. Judged by standard of modern civilization in the background of the cultural heritage and traditions of our society, a young and well educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony. This view was taken by the Kerala High Court in the case reported in AIR 1991 Kerala 1.
In 1993 (2) Hindu L.R. 637, the Court had gone to the further extent of observing as follows:
“Sometime even a gesture, the angry look, a sugar coated joke, an ironic overlook may be more cruel than actual beating”
Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.
The legal concept of cruelty which is not defined by statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all question of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complains accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and abhorrence for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant’s side, ought this appellant to be called on to endure the conduct? From the respondent’s side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.
As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.
The modern view of cruelty of one spouse to another in the eye of law has been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of England Vol.12, 3rd edition page 270:-
“The general rule in all kinds of cruelty that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations of taunts. Before coming to a conclusion, the judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from the point of view. In determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status.”
This Court in Dastane vs. Dastane AIR 1975 SC 1575 observed as under:-
“The Court has to deal not with an ideal husband and an ideal wife, (assuming any such exist) but with the particular man and women before it. The ideal couple or a mere ideal one will probably have no occasion to go to a matrimonial court or, even if they may not be able to drawn their differences, their ideal attitudes may help them overlook or gloss over mutual fault and failures.
Marriage without sex The Division Bench in the case of Rita Nijhawan vs. Balkrishan Nijhawan in AIR 1973 Delhi 200 at 209 observed as follows:
“Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman’s mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifres woman’s brain, develops her character and trebles her vitality. It must be recognized that nothing is more fatal to marriage than disappointment in sexual intercourse.”Section 13(1)(iii) ‘mental disorder’ as a ground of divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible it may furnish a good ground for nullifying the marriage because to beget children from a Hindu wedlock is one of the principal aim of Hindu Marriage where sanskar of marriage is advised for progeny and offspring. This view was taken in AIR 1991 MP 205. This Court in Digvijay Singh vs. Pratap Kumari, AIR 1970 SC 137 has held as follows “A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.”
Lord Denning in Sheldon v. Sheldon (1966) 2 All ER 257, “The categories of cruelty are not disclosed. Each case may be different. We deal with the conduct of human being who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capability to tolerate the conduct complained of. Such is the wonderful realm of cruelty.”
Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged.
We can also take note of the fact that the respondent had filed a revision against the order of the trial Court’s direction for setting up of a medical Board to examine the respondent. At the time of hearing, this Court directed the counsel for the respondent to ascertain from the respondent as to whether he is willing to submit himself for medical examination. However, the respondent refused to submit himself for medical examination and go before the medical Board. This would but confirm the contention of the appellant that the respondent is suffering from Paranoid Schizophrenia and that this Court can draw adverse inference in view of the conduct of the respondent. In the case of Smt. Uma Rani vs. Arjan Devi (supra), it has been held that unsoundness of mind may be held to be cruelty.
In the case of Harbhajan Singh Monga vs. Amarjeet Kaur (Supra), it has been held that attempt to commit suicide by one spouse has been found to amount to cruelty to other.
The observation made by this Court in the case of Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121 can be reproduced to appreciate the facts and circumstances of the case on hand. It reads as follows:
“There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. The Judges and lawyers, therefore, should not import their own notions of life. Judges may not go in parallel with them. There may be a generation gap between the Judges and the parties. It would be better if the Judges keep aside their customs and manners. It would be also better if Judges less depend upon precedents.”
Humane aspects which this Court should consider:
? The appellant was 24 years of age when she got married. ? The marriage lasted for four to five months only when she was compelled to leave the matrimonial home.
? The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation. ? The parties have been living separately since 1993. 13 years have passed they have never seen each other.
? Both the parties have crossed the point of no return. ? A workable solution is certainly not possible.
? Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream.
? Parties have been fighting the legal battle from the year 1994. ? The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wife’s stay with the respondent is injurious to her health. ? The appellant has done her Ph.d. The respondent, according to the appellant, is not gainfully employed anywhere.
? As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial Court nor before the High Court.
The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.
In our view, the orders of the Courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a dead relationship for over 13 years. The resultant agony and injustice that has been caused to the appellant, it is a fit case for interference under Article 136 of the Constitution of India and reversal of findings of the Courts below which have resulted in grave miscarriage of justice. In the result, the civil appeal stands allowed. There will be a decree for divorce in favour of the appellant-wife and against the respondent-husband. The order of the trial Court as affirmed by the High Court, stands set aside. There will be no order as to costs.