Uttarakhand High Court
Manish Adhikari vs Smt Bindiya Adhikari on 4 September, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 104 of 2015
Manish Adhikari ......Appellant
Versus
Smt. Bindiya Adhikari ...... Respondent.
Present:
Mr. Ramji Srivastava, Advocate for the appellant.
None for the respondent.
Reserved Judgment
JUDGMENT
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Dated: 4th September, 2017 Per Hon'ble Sharad Kumar Sharma, J.
The plaintiff appellant in the instant appeal has challenged the judgment dated 18th August, 2015, rendered by the Family Court, Dehradun, in Original Suit No. 327 of 2009, Manish Adhikari Vs. Bindiya Adhikari, filed by the appellant for dissolution of marriage, which was dismissed.
The facts of the case are that as per the plaint allegation of the appellant, he contended that the marriage between him and the defendant was solemnized on 7th March, 2007, according to the Hindu rites and rituals at Dehradun. Normally, as it happens, at the initial stages, the matrimony between them proceeded in harmonious circumstances where both husband and wife showered all love and affection to each other. According to the husband, at a later stage, the respondent wife started creating trouble in her relation with the appellant and his family members and often, now and then, due to minor misunderstandings, she 2 started quarreling on trifle issues. Despite of the best efforts made by the appellant to pacify the altercations, but, the same remained unchanged and the behaviour of the respondent wife continued to be acrimonious. According to the husband appellant, respondent wife left the house of the appellant on 1st January, 2008, voluntarily and without there being any reason. It was the case of the appellant that since 01.01.2008, they are living separately without any cohabitation and without having any relationship as of husband and wife. On account of non establishment of any relationship, there was no issue, born out of the wedlock. As a result of the aforesaid misunderstanding, the appellant filed the suit on 3rd August, 2009. The basic foundation of the suit was that day-to-day cruelty and also the desertion when she left the home of in-law in January, 2008.
The family members of the appellant alongwith other respectable persons tried to pave a bridge for continuance of relationship between the appellant and the respondent by holding a panchayat so that the misunderstanding between the parties to the appeal may be soften and the relationship between them revives. A meeting of the Village Panchayat was held on 6th July, 2008, under the Chairmanship of Gram Pradhan, wherein, the statement was recorded of both the parties. As a result of the decision of the Panchayat, both the parties were given a year's breathing time to adjust themselves according to each other expectations. It was further decided that both husband and wife will live separately but still, according to the husband, the wife deserted on 01.01.2008, and left the company of the husband and ever since then, she is residing with her parents and there is no cohabitation between the parties.
3According to the husband, after the expiry of the period of one year, in pursuance to the meeting held on 12th July, 2009, when a re-scheduled meeting of Panchayat was held in the presence of the Pradhan, according to the husband, the defendant made statement in open that she wants maintenance from the plaintiff and does not want to revive the relationship of husband and wife. According to the husband, the relationship became so sore between them that they left no stone unturned to ensure inflicting allegations against each other.
On issuance of notices, the notice was served upon the respondent, she filed her written statement and only after receipt of notice and as a counter blast, the respondent wife initiated the proceedings under Sections 12, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005. In the written statement, thus, filed on 22nd August, 2013, the wife denied the allegations raised by the husband in the plaint.
The Domestic Violence proceedings which was carried on independently before the Judicial Magistrate, Dehradun and which culminated on 20th May, 2015, the Judicial Magistrate dismissed the petition and held that the allegations of domestic violence is not made out. The husband, in support of his pleadings, as agitated in the plaint, adduced evidence by way of affidavit in Chief, Paper No. 26-A2/1 and he also filed his affidavit by way of document as Paper No. 27-A2/1. The learned Trial Court, after considering the rival contentions of the parties pertaining to the issues of cruelty, framed the following issues :-
4"1. D;k foi{kh }kjk ;kph ds lkFk dwzjrk dk O;ogkj fd;k x;k gS] tSlk fd ;kfpdk ds fofHkUUk pj.kksa esa of.kZr gS\ 2- D;k ;kph okafNr vuqrks'k ikus dk vf/kdkjh gS \"
No issue of desertion was framed by the Family Court. While dealing with issue No. 1, it is an admitted case of the appellant that the question of cruelty with regard to the allegations were not established because there was no independent witness produced to show that there existed cruelty or cruelty was exercised by the respondent wife. Because in the matrimonial proceedings, the cruelty is not an uniform factor which is to be made applicable uniformly in all the matrimonial cases, rather establishment of the cruelty is always a subject matter which is dependent upon the circumstances of each and individual case. But, this too, has to be established by the person who alleges cruelty by leading evidence. There is nothing on record brought by the appellant to show that there chance any cruelty exercised by the wife against him which could result into dissolving the sacred institution of society, i.e. the matrimony. According to the husband, despite of there being meetings of Panchayat held on 16th July, 2008 and 12th July, 2009, in which, almost all the female members of the Panchayat participated to ensure the settlement of dispute but the efforts made by the Panchayat also yielded no result.
Even in the meeting held with the participation of the family members and Panchayat Members, the only claim which was raised by the respondent was that she wanted maintenance from the husband. From this attitude, it shows that wife was only interested in getting the maintenance without discharging her matrimonial obligations.
5On reading of the evidence as well as the pleadings, all allegations of cruelty do not specify any particular incident which have the gravity of cruelty. Rather on its judicial scrutiny, it is found that these grounds of cruelty were only minor in nature which is normally expected in relationship of husband and wife. Though, the panchayatnama was executed which bears the endorsement of the parties to the appeal as well as the members of the Panchayat, which will amount to be an admission but the Panchayat since was not reflecting the actual controversy and since it was not reflecting the alleged incident of cruelty which could be brought within the purview of the cruelty as settled by the Courts of law. It led to a situation where the Court recorded the finding that as a matter of fact the appellant has failed to establish cruelty against the respondent. The allegation of cruelty against the husband is also not established from the fact that in the judgment impugned, it quotes the excerpts of a letter Paper No. 35A/1, which is admitted to have been written by wife to the appellant in which she has expressed her emotion which she carried for her husband claiming that the relationship is inseparable and she loves the appellant more than the Almighty.
The learned Court below while interpreting the contents of the letter which normally a wife is expected to write to her husband, it observes that it was nothing but an unbounded love which the respondent carried and expressed towards her husband. From the said letter, it was established that the respondent had not committed any cruelty and the Court held that it was nothing but a consequence of misunderstanding as the respondent wife expressed that she wants to eradicate all misunderstandings 6 and wants to live together as husband and wife. Accordingly, the Court held, while deciding issue No. 1 that the cruelty is not established.
On the question of desertion as alleged by the wife, based on the incident which occurred on 26th December, 2007, it was a case that the allegation was without any basis whereas the fact remains that at that point of time, he was working in his Officer at Ghaziabad. On return of wife to the in-laws on 01.01.2008, she misbehaved with the mother-in- law and then gave a call on telephone No. 100, seeking for police assistance. Then, according to the findings recorded, the learned counsel for the appellant, based on the findings of the Family Court had taken a ground that the marriage could not subsist because the respondent was gradually and consistently misbehaving with the parents, however, looking to the evidence and argument extended, the appellant has not been able to prove the same.
According to the statement of Smt. Saroj Gurang, Village Pradhan, who intervene in the matter by conducting panchayat on two occasions, found that the opposite party has committed cruelty with the family members of the appellant, however, yet the Panchayat made efforts to bring them together and they were asked to live together and to report back after one year. On account of the fact that either before the Court below or before this Court, the appellant has failed to establish the cruelty for the evidence beyond doubt nor circumstances revealed that there had chanced cruelty, this Court feels that in the absence of any of the element mentioned under Section 13 for dissolving the marriage is established by the plaintiff to the suit, the 7 matrimony which is the purest form of relationship ought not to be dissolved on trifle issues.
In a matrimonial relationship, there has to be a definite allegation of cruelty, which is required to be proved by the person of a party to the dispute claiming dissolution of marriage based on cruelty. The allegation of cruelty cannot be hearsay. Since the criteria of determining cruelty is not specified under law except by the judgment rendered by the constitutional courts, it is incumbent on the parties to the matrimonial dispute to prove the allegation of cruelty for getting a decree of divorce in the light of parameters as laid down by the Hon'ble Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh reported in 2007 (4) SCC 511. Para 98, 99, 100 and 101 of the said judgment are quoted as under:
"98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.
99. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-8
jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury 9 to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."10
The learned counsel for the appellant has placed reliance on a judgment rendered by the Division Bench of this Court on 18th June, 2015, in First Appeal No. 17 of 2014. In the said case, the Division Bench was dealing with the case where one of the spouses was suffering from the disease of Schizophrenia and the Court held that while residing separately for several years for no justified reasons withdrawing from the society of the husband would amount to cruelty and this itself would be sufficient to grant a decree of divorce. No such case was either pleaded, proved or established by the appellant.
On account of the fact that the appellant had not proved any of the factors existing under Section 13 of the Act, this Court finds that the judgment rendered by the Court below, impugned in the present appeal, is absolutely just and proper which does not call for any interference by this Court. Hence, the appeal is dismissed. No order as to costs.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 04.09.2017 04.09.2017 Shiv