Madhya Pradesh High Court
Hanuman Prasad Rajak vs Kashibai on 21 April, 1992
Equivalent citations: I(1992)DMC608
JUDGMENT Gulab Chand Gupta, J.
1. This appeal Under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) is by the plaintiff-husband who feels aggrieved by the Judgment and Decree dated 20.8.1990 passed by Fifth Addl. District Judge, Bilaspur in Civil Suit No. 23-A/90 dismissing his application for divorce.
2. The parties are legally married husband and wife and governed by the Act. They were married on 20.2.1970 and have a male child born to them. They are living separately since 4.6.1976. It may be mentioned that the appellant's elder brother Kamal Kishore was married to the elder sister of the respondent, viz. Vimlabai but the relationship between them has been brought to an end by a decree of divorce. The appellant filed an application seeking divorce Under Section 13 of the Act on the ground of cruelty and desertion. He alleged that the treatment of the respondent with him, his mother and paternal aunt was cruel and she even used to abuse and assault them. This has caused mental tension and endangered his life. It is specifically averred that on 2.6.75 the respondent assaulted appellant's mother and paternal aunt and abused them filthily. Intervention of Panchas was sought the appellant who specified the whole matter by affecting the compromise. It is further alleged that on 4.6.76 the respdt. and her elder sister Vimlabai had returned late in the night from their parents' house and were scolded for that reason. Both the sisters thereafter got angry and started abusing everyone filthily. Vimlabai poured Kerosene Oil on her body and threatened to burn herself. Respondent threatened to involve the entire family of the appellant in false criminal case for that reason. Panchas were again called for affecting compromise. As a result of their intersection, the respondent left the house saying that she has nothing to do with the appellant or his family and that they were dead for her. The respondent even did not take her infant with her because she wanted to have no connection with the appellant and the family. It is alleged that the respondent was pregnent at that time and subsequently gave birth to a female child who unfortunately died. The news of the death of the female child was not even communicated to the appellant. On these facts, it is alleged that the respondent was guilty of cruelty and had deserted her matrimonial home permanently, justifying a decree for divorce.
3. The respondent denied all the aforesaid allegations and submitted that the appellant used to beat and threaten her with dire consequences. She denied that she had ever assaulted the appellant's mother or paternal aunt and submitted that it was she who was assaulted by the appellant and driven out of the house. She volunteered to live with the appellant without any condition. She further alleged that the real reason behind the application for divorce was the intention of the appellant to seek second wife.
4. The learned trial Judge, on appreciation of evidence adduced by the parties, held evidence does not establish that the respondent has been cruel towards the appellant or the members of his family. Learned Judge further held that the respondent has not deserted the appellant on 4.6.76 as alleged and that the respondent was willing to stay with the appellant. The learned Judge was further of the opinion that it was the appellant who has unjustifiably left the respondent and is not willing to bring her back. The Court thus found no justification for any decree of divorce. That is how the application filed by the applicant was dismissed. It is this Judgment which is impugned in the present appeal.
5. Since the divorce is requested on the ground of cruelty and desertion, specific allegations in this behalf deserve attention. A perusal of the application would indicate that cruelty consists of respondent's abusing the appellant, his mother and paternal aunt, generally and assaulting mother and paternal aunt on 2.6.75. It also consists of threat to involve the appellant and the members of his family in false criminal case on 4.6.1976. As regards desertion, it consists of leaving the house on 4.6.76 after stating that the appellant was dead for the respondent. These facts are denied by the respondent in her written statement. Burden of proving these allegations is on the appellant and therefore he has to establish the same by leading clear and cogent. evidence in that behalf. In Dr. N.G. Dastane v. Mrs. S. Dastane AIR 1975 SC 1534 the Supreme Court clarified that the burden of proving cruelty lies on the petitioner seeking divorce. Section 13(1)(ia) requires the applicant to prove that she has been treated by the opposite party with cruelty. The word "cruelty" has not been defined in the Act. This Court however considered the ambit and scope of this provision in Umri Bai v. Chittar Jhabbu, 1965 MPLJ 549 and held that it postulates a treatment with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will he harmful or injurious for her to live with the other party It does not mean physical cruelty alone and is comprehensive enough to include cases of mental cruelty which may cause even more serious injury then physical harm and create in the mind of the injured spouse such apprehension as is contemplated in the provision. The Court further clarified that the question must be determined as a cumulative effect of all the circumstances having regard to the culture, temperaments, status, health of the parties, the interaction between them in their daily life and numerous other features which cannot be brought in and confined to an exclusive or inclusive definition. This also seems to be the view of Bombay High Court in Dr. Narayan Ganesh Dastane v. Mrs. Sucheta Narayan Dastane, AIR 1970 Bombay 312. The Supreme Court decision quoted above also prescribed the same approach. Under the circumstances the complaint of the appellant will require determination on the aforesaid principle.
6. The first complaint of the appellant is that on 7.6.75 the respondent and her sister abused and assaulted his mother and aunt on the road like a rustic woman and thereby caused mental cruelty to him. It is alleged that he is the Secretary of Congress Sewa Dal and Sr. Vice President of Bhrashtachar Unmulan Samity and because of this, status, he has suffered mental torture. Neither the mother nor the aunt of the appellant have been examined. Bhagwat Prasad Shukla (PW 1) has not deposed anything about this incident. He however talks of some incident in the month of May/June about ten years before. According to him he saw respondent Kashibai and her sister on one-side and appellant's mother and aunt on the other side dragging each other by catching hair and abusing. We however was not able to say as to who was abusing whom. In his cross examination he admitted that he did not go to the spot to pacify the quarrel or make enquiries which appears to be some unusual. Balram (PW 1) also talks about an incident 10-12 years before when he saw the respondent and her sister coming to the house and assaulting his mother and aunt. According to him, Bhagwat Prasad Shukla intervened and pacified the trouble. In the cross-examination he admits that he had not seen any quarrel between the parties before that date. Now if the evidence of this witnesses to be believed, he was speaking of about some incident which had taken place about 10-12 years before. Since he gave his evidence on 15.1.88, the incident according to him may have taken place between 1976 or 1978. Then this was the first incident, according to him, of the time. Evidence of this witness contradicts the evidence of Bhagwat Prasad Shukla, inasmuch as, Bhagwat Prasad Shukla does not say that he went to the spot and pacified the quarrel. He on the contrary denies having gone to the spot and intervened. The appellant as PW 2 has deposed that on 2.6.75 when the respondent in the company of her mother and sister came to his house and started beating his mother and aunt. His statement that the respondent was accompanied by her mother at that time is not supported by his other witnesses and does not find place in the application. Apparently the appellant has exaggerated. Then in the cross-examination, he was asked as to why there should have been a beating but he was not able to state any reason. It is unlikely that a person coming from outside would start beating to close relations for no reason. If evidence of Balram is to be believed, there had been no previous quarrel between the parties, which fact, if taken into consideration, would make the incident wholly unnatural. As against this, the respondent, in her cross-examination, denied having beaten appellant's mother and paternal aunt and complained that in fact she was beaten by them. She had not been asked any question in cross examination about this incident. Be that as it may, the evidence adduced by the appellant, as appreciated above, does not meet the requisite standard. The learned trial Judge has considered the evidence little more closely and has rightly held that the allegation was not proved. Since this Court is in full agreement with the said conclusion, it is not considered necessary to examine the matter in any great details.
7. This leads to the incident dated 4.6.76 for consideration. In the application it is alleged that the respondent and her sister had gone to their parents without their permission and were scolded by the appellant and his brother. It was because of this that the respondent and her sister got annoyed and started shouting and abusing. Respondent's sister poured kerosene soil on her person and threatened to commit suicide. The respondent is said to have then threatened the appellant to involve them in false criminal case. It was thereafter that Panchas were called and the respondent left the appellant's house. Bhagwat Prasad Shukla (PW 1) claims to be the neighbour living by the side of the appellant's house and has said nothing about this incident. Indeed he does not talk of the respondent or her sister pouring kerosene oil and threatening to commit suicide. Balram (PW 3) is therefore the only witness. According to him, it was summer night at about 10-11 p.m. when he was returning home and saw lot of cycles parked in front of the appellant's house. Panchas of the community were also there and talking to respondent and her sister. He did not hear any of the talks. But later on both the sisters said that they would not like to live there and left for their parental home, leaving their children. Appellant and his brother rushed to them with their children but they refused to accept them. He claims to have heard the two sisters shouting that their husband are dead for them and so the children. Surprisingly this witness does not know the name of any one at the place. He is not able to even name its Panchas. This makes his presence doubtful. Then, surprisingly he does not talk about appellant's sister having poured kerosene oil on her person. He also does not say anything whereby it may be inferred that they had left the appellant's house for no reason. The appellant as PW 2 has however deposed that the respondent returned home late in the night and was scolded by him on which she started abusing the members of his family. He does not say that the respondent returned with her sister Vimlabai. He also does not say that Vimlabai was also scolded and yet he has deposed on bath that Vimlabai had poured kerosene oil on her person and threatened to burn herself. In the cross-examination (Para 16) he was unable to say whether the respondent or anyone else prevented Vimlabai from pouring kerosene oil. Be that as it may. This Court is not concerned with the conduct of Vimlabai and therefore no serious enquiry is required. The appellant has not alleged that the respondent did anything on 4.6.76 except that on being scolded she abused the appellant and the members of his family. The appellant has not even stated on both that the respondent threatened to falsely involve him or members his family in any false criminal case. His evidence is only that when the appellant returned home, he scolded her and on being so scolded, she abused him and the members of his family. As against this, the statement of the respondent is that she had gone to her parents' house and the appellant , had brought her back home and gave a beating. On being beaten by the appellant, her sister poured kerosene oil on herself. She went to save her but was beaten. She does not say that she threatened to falsely involve the appellant or anyone. One of the Panchas who came to the spot has been examined by the respondent. Choudhary Moolchand (DW 2) has deposed on both that he was called by the appellant and his brother and reached their home in the company of Munnilal, Pyarelal and Lallu. They were told by respondent that the appellant and his brother were trying.to burn her sister. The appellant and his brother then told him that they were not burning her but she was voluntarily burning herself. At this they thought it proper to take the two sisters way and leave them with their parents. Next day a fullfledged Punchayat was called in which the appellant stated that he does not wish to keep the respondent any mere. This evidence of the respondent would thus explain the necessary background of the alleged incident and justify the conclusion recorded by the learned trial Court. In the absence of any positive evidence even by the appellant about the threat to falsely involve the appellant and his family members in any false criminal case, the respondent cannot be held guilty of any cruelty. This Court is therefore in full agreement with the learned trial Judge that the evidence on record does not satisfy the legal requirement.
8. It may therefore be examined if the respondent has deserted the appellant ? The fact that the parties are living separately since last about 14 years is admitted and therefore serious arguments have been addressed that this Court should be pleased to draw inference of desertion. The desertion however does not consist of living separately. In Lachman Utamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40, the Supreme Court has considered this aspect of the matter in detail and clarified that it consists of two essential elements, viz. (i) factum of separation; and (ii) intention to bring cohabitation permanently to an end or animus deserendi. Similarly, so far as the deserted spouse is concerned, two elemente are essential : (i) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. In Smt. Rohini Kumari v. Narendra Singh, AIR 1972 SC 459, the Court further clarifies that burden of proving both these elements is on the petitioner and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition. Under the circumstances, the evidence of the appellant would require examination to ancertain whether the aforesaid elements have been established. The desertion is said to have commenced on 4.6.76. According to the appellant, the respondent left his house on that date after saying that they would not live there. She also left her infant and said that not only he but the child also were dead for her. His statement however does not find any support from his witnesses Balram (PW 3) is the only witness who has stated that two sisters left the appellant's house by saying that they did wish to live there and that the appellant and his brother went to them to handover children, both of them told that their husband and children were dead for them. Choudhary Moolchand (DW 2) who was admittedly present, does not support the said version. According to him, the respondent and her sister had left the appellant's house at the instance of Panchas as they had thought this in the best interest of the parties. According to him, next day a fullfledged Panchayat was called where the respondent volunteered to go back to the appellant's house but the appellant refused to accept her. The appellant has, in his statement, admitted that he did not make any effort to bring the respondent back to his house. He also firmly stated that he was not prepared to keep the respondent. This statement would justify the conclusion that the respondent did not leave the house voluntarily but did so because of the orders of Panchas. The evidence further establishes that the respondent did not return home because the appellant had refused to permit her return. Almost the elements of desertion are therefore wanting in the instant case. In this view of the matter, this Court is in full agreement with the conclusion recorded by the learned trial Judge and is pleased to affirm the same.
9. As a consequence of the aforesaid discussion, the appeal is held to be devoid of substance, and is dismissed.