Gauhati High Court
Anju Saha vs Gobinda Saha on 13 March, 2014
Equivalent citations: AIR 2014 GAUHATI 96, (2014) 4 GAU LT 25, (2015) 1 CIVLJ 278, (2014) 3 DMC 563, (2014) 4 GAU LR 56
Author: P.K. Saikia
Bench: P.K. Saikia
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
MAT. APP. No. 28 of 2013
Smt. Anju Saha,
D/O Late Paresh Ch. Saha,
Resident of Anandapur, Howly, PS-Barpeta Road,
District-Barpeta, Assam.
......Appellant.
-Versus-
Sri Gobinda Saha,
S/O Nepal Saha,
Resident of Ward No.10, Barpeta Road,
PS-Barpeta Road, Dist.-Barpeta, Assam.
......Respondent.
Advocate(s) for the Appellant :
Mr. P.S. Seka,
Mr. N.D. Bhuyan,
Mr. P.K. Mazumdar,
Ms. S. Bhattacharjee.
Advocate(s) for the Respondent :
Mr. A.M. Buzarbaruah,
Mr. B. Ahmed,
Mr. N. Haque,
Mr. K. Uddin.
BEFORE
THE HON'BLE MR. JUSTICE B.P. KATAKEY
THE HON'BLE MR. JUSTICE P.K. SAIKIA
Date of Hearing : 13.03.2014
Date of Judgment & Order : 13th March, 2014
JUDGMENT AND ORDER (ORAL)
[K atakey, J. ] This appeal, by the wife, is directed against the judgment and decree dated 24.05.2013, passed by the learned District Judge, Mat.App. 28/2013 Page 1 of 8 Barpeta, in Divorce Title Suit No.13/2010, decreeing the suit of the respondent dissolving the marriage between the appellant and the respondent by a decree of divorce, on the ground that the marriage between the parties has irretrievably broken down.
2. An application under Section 13(1)(i) of the Hindu Marriage Act, 1955 (in short the 1955 Act), has been filed by the respondent herein praying for dissolution of the marriage with the appellant herein, contending inter alia that though the marriage between the parties was solemnized on 13.02.2004, out of which wedlock a boy was born, who was 5(five) years old, the appellant/wife has started treating the respondent/husband as well as his family members with cruelty by using harsh and filthy languages causing mental pain to them, who often went away to her parents' house with the minor child without the knowledge and consent of the husband, thereby causing inconvenience and hardship to him. The further pleaded case is that on 20.08.2006 the respondent has left husband along with their minor son and since then is living with her parents, without there being any justification for that and also refused to return to the matrimonial house and openly declared that she would never resume her conjugal life with the husband as he is poor and unable to provide the minimum comfort of life. A very serious allegation of living an adulterous life has also been leveled by the husband, in the said application seeking divorce, against the wife.
Mat.App. 28/2013 Page 2 of 8
3. The appellant wife on receipt of the summons entered appearance and filed the written statement disputing the claim of the husband and contending inter alia that it was the husband who was demanding more dowry and when the family members of the wife refused to pay any further dowry, the husband assaulted her and even threatened her to kill. It has further been pleaded that she was in fact driven out of the matrimonial house along with the minor child, because of non-payment of the dowry, for which she has to institute a proceeding under Section 125 Cr.P.C., she having no independent source of income. The wife has also pleaded that despite her desire to stay with the husband, he has refused to keep the wife and the child and intended to marry another woman. It has also been pleaded that because of the demand for dowry, proceedings under Section 498A IPC was instituted by the wife, apart from institution of a suit seeking damage for the allegation of living an adulterous life.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for determination:-
(i) Whether the petitioner is entitled to get the decree of divorce as prayed for?
(ii) To what other relief(s), if any, the parties are entitled?
5. The learned District Judge upon appreciation of the evidence on record, adduced by the parties passed the decree dissolving the marriage between the parties, on the ground that the marriage has irretrievably broken down, though it has been held that the husband could not substantiate, by adducing any evidence, the allegation of Mat.App. 28/2013 Page 3 of 8 cruelty as leveled by him against the wife. It has also been held by the learned District Judge that the husband also could not substantiate the allegation of living in adultery by the wife and such false allegation of adultery by a spouse made public and giving publicity results in mental agony and loss of faith in public, which amounts to worst type of cruelty towards the wife. Hence the present appeal.
6. We have heard Mr. P.S. Deka, learned counsel appearing for the appellant/wife and Mr. A.M. Buzarbaruah, learned counsel appearing for the respondent/husband.
7. Mr. Deka, the learned counsel appearing for the appellant, referring to the finding recorded by the learned District Judge in the impugned judgment and decree, has submitted that the learned District Judge having held that the respondent could not substantiate the allegation of cruelty leveled against the appellant, ought not to have dissolved the marriage between the parties on the ground that the marriage has irretrievably broken down, more so when unsubstantiated allegation of adultery leveled against the appellant was found to be the worst type of cruelty, which itself is a ground on the part of the appellant/wife to refuse to stay with the respondent/husband. The learned counsel further submits that since 'irretrievable broken down of marriage' is not a ground enumerated in Section 13(1) of the 1955 Act, the learned District Judge had no jurisdiction to dissolve the marriage between the parties by passing a decree, on that count, which power is available only with the Supreme Court under Article 142 of the Mat.App. 28/2013 Page 4 of 8 Constitution of India. The learned counsel further submits that filing of the criminal proceeding under Section 498A as well as 494 IPC by the appellant/wife against the respondent/husband and his family members, also would not amount to mental cruelty, so as to get a decree of divorce by the respondent/husband, since such proceedings which are still pending, were filed for demanding dowry as well as for bigamy by the husband. The learned counsel submits that no decree dissolving the marriage can be passed solely on the ground of institution of such proceedings, unless of course it is proved that those were false proceedings instituted, amounting to mental cruelty.
8. On the other hand, Mr. Buzarbaruah, the learned counsel appearing for the respondent/husband, supporting the judgment and decree passed by the learned District Judge, has submitted that though the marriage between the parties cannot be dissolved by passing a decree only on the ground of irretrievable broke down of marriage by the Civil Court, such a decree can be passed if the elements of mental cruelty, based on the evidence adduced by the parties, writ large. According to the learned counsel, in the case in hand, the learned District Judge has come to the finding that the marriage between the parties has irretrievably broken down because of the mental cruelty meted by the appellant/wife to the respondent/husband by instituting various criminal as well as the civil proceedings, thereby straining the relationship between the parties, which resulted in staying separately since the year 2006 and hence the said judgment and decree passed by the Court below needs no interference.
Mat.App. 28/2013 Page 5 of 8
9. We have considered the submissions advanced by the learned counsel for the parties and also perused the judgment and decree passed by the Trial Court apart from the evidence adduced by the parties.
10. It is evident from the impugned judgment passed by the learned District Judge that though the respondent/husband alleged mental cruelty, he could not prove the same by adducing any cogent and reliable evidence. The learned Judge has also found that though the respondent/husband brought the allegation of living an adulterous life by the wife, he could not substantiate the same by leading any evidence and such false allegation of adultery by a spouse made public and giving publicity, results in mental agony and loss of face in public, which itself amounts to worst type of cruelty on the part of the husband towards the wife.
11. The respondent/husband having not been able to prove cruelty and levelled a very serious unfounded allegation of living an adulterous life, which justifies the wife to live separately, the learned District Judge ought not to have dissolved the marriage between the parties on the ground that the marriage has irretrievably broken down, only because both the parties are living separately since the year 2006 and a number of criminal and civil proceedings have been instituted by the appellant/wife. A party cannot be allowed to take advantage of his own wrong and plead that the marriage should be dissolved on the Mat.App. 28/2013 Page 6 of 8 ground of living separately continuously for a longer time, though the fault on the part of the party results in living separately by the other party.
12. Section 13(1) of the 1955 Act does not postulate dissolution of a marriage, by passing a decree of divorce, on the ground that the marriage between the parties has irretrievably broken down. A decree dissolving the marriage between the parties on such ground, however, may be passed by the Apex Court in exercise of the jurisdiction conferred in it by virtue of Article 142 of the Constitution of India, even in the absence of proof of cruelty or otherwise, to do complete justice to the parties. However, if the mental cruelty as alleged by the person seeking a decree of divorce is proved and the Court is of the opinion that because of such mental cruelty as well as long separation between the parties the marriage has irretrievably broken down, the Court may pass a decree dissolving the marriage between the parties, as marriage can be dissolved on the ground of cruelty.
13. In the instant case, though certain allegations, which in the event of being proved, may amount to mental cruelty, were leveled by the respondent/husband against the appellant/wife, those could not be proved by the respondent/husband. As because criminal proceedings under Section 494 IPC and 498A IPC have been instituted by the appellant/wife against the respondent/husband, it would not amount to mental cruelty against the respondent/husband, as the appellant/wife has a right to institute such proceedings, unless of course, it is proved Mat.App. 28/2013 Page 7 of 8 that such proceedings are false and frivolous. Institution of a civil proceeding seeking damage, for making the allegation of living in adultery by the wife in the application filed under Section 13(1) of the 1955 Act, and the dismissal thereof, would also not amount to mental cruelty, as in such civil suit what is required to be gone into is whether because of such allegation any damage has been caused to the person claiming the compensation. As noticed above, in the case in hand, the serious allegation of living in adultery leveled against the appellant/wife could not be substantiated by the respondent/husband. Such false and frivolous allegation would constitute the valid ground for the appellant/wife to live separately from the husband and hence no decree dissolving the marriage between the parties on the ground of the marriage being irretrievably broken down because of living separately for a quite long time cannot be passed.
14. In view of the aforesaid discussion, we are of the view that the impugned judgment and decree passed by the learned Judge, cannot be sustained in law and hence the same is set aisde.
15. The appeal is therefore allowed. No costs.
16. Registry is directed to send down the records.
JUDGE JUDGE
Roy
Mat.App. 28/2013 Page 8 of 8