Himachal Pradesh High Court
________________________________________________________________ vs Sh. Sanjay Kumar Dhiman on 26 July, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO(HMA) No. 116/2013
Reserved on: July 16, 2016
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Decided on: July 26, 2016
________________________________________________________________
Smt. Kavita Devi ..Appellant
Versus
Sh. Sanjay Kumar Dhiman ..........Respondent
________________________________________________________________
of
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 yes.
rt
For the Appellant : Mr. V.S. Chauhan, Advocate.
For the Respondent : Mr. Y.P. Sood, Advocate.
________________________________________________________________
Rajiv Sharma, Judge:
This appeal has been instituted against Judgment dated 13.2.2013 rendered by the learned Additional District Judge, Fast Track Court, Una (H.P.) in HMA Case No. 14/86/RBT-FTC-No. 8/11/2006.
2. "Key facts" necessary for the adjudication of the present appeal are that the respondent filed a petition under Section 13(1)((i)(a) of the Hindu Marriage Act against the appellant for a decree of divorce on the ground of cruelty.
According to the averments made in the petition, marriage 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:53:25 :::HCHP 2between the parties was solemnised on 30.1.2006 as per Hindu rites and customs at village Sanghnai, Tehsil Amb, District Una, .
Himachal Pradesh. They lived together at village Sohari but the marriage was never consummated between the parties. Appellant was a very adamant lady by nature and right from the first night of the married life, refused to perform marital obligations towards the respondent and disclosed that she was married to the of respondent against her wishes and she would not allow the appelalnt to have any sexual intercourse with her in future.
rt Respondent was humiliated at the hands of the appellant.
Appellant refused to have physical relations by openly proclaiming that she was having affair with a boy living at Bombay. She asked the respondent not to touch her. She came under depression. He narrated the sequence of events to his mother. He also tried to convince the appellant. She used to threaten to commit suicide. She has also levelled wild allegations that he was having sexual relations with his niece. He tried to embrace her on 2.4.2006. However, in a fit of rage, she went out of the room of the respondent and went towards village well. She threatened to commit suicide. Matter was reported to the Pradhan of the Gram Panchayat. Father of the respondent also lodged a report with the police on the next morning.
::: Downloaded on - 15/04/2017 20:53:25 :::HCHP 33. Petition was contested by the appellant. It is denied that the marriage was never consummated. Appellant's father .
had spent a lot of money to fulfill the demands of the respondent's family. She was very humble, adjustable and god-
fearing woman. She treated the appellant as God. She has never refused to have sexual relations with the respondent. She has fulfilled all the marital obligations. As such marriage was of consummated. She had no affair with any boy. She never misbehaved with the mother of the respondent. She was ready rt and willing to stay with the respondent and to spend whole life with the respondent. It is denied that she tried to commit suicide by jumping into well on 2.4.2006. Respondent and his family members demanded `1,50,000/- in cash from her to buy a car.
However, after a few days of marriage, they started abusing and maltreating her. She was constrained to file petition under Section 498A IPC, a petition under Section 125 CrPC. She also filed proceedings before the Women Cell, Dharamshala to resolve the matter on 10.7.2006 and another applciation on 7.6.2009 before Pradhan of village Sohari.
4. Rejoinder was filed by the respondent. Issues were framed on 13.7.2008 and 18.8.2012. Learned Court below allowed the petition on 13.2.2013. Hence, this appeal.
::: Downloaded on - 15/04/2017 20:53:25 :::HCHP 45. Mr. V.S. Chauhan, Advocate, has vehemently argued that the his client has never treated the respondent with cruelty.
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6. Mr. Y.P. Sood, Advocate, has supported Judgment dated 13.2.2013.
7. I have heard the learned counsel for the appellant and also gone through the record carefully.
8. Respondent has appeared as PW-1. He has reiterated of the averments made in the petition. According to him, appellant in a fit of rage has tried to commit suicide by jumping into a well rt on 2.4.2006. Matter was reported to the Pradhan, Gram Panchayat by his father and also to the police.
9. Pawan Thakur (PW-2) deposed that on 2.4.2006, at around 10 PM, bother of the respondent came to him and told that the wife of the respondent had gone towards the village well.
He visited the spot. Appellant told him that the respondent had tried to embrace her forcibly. Behaviour of the appellant towards respondent was cruel. She refused to maintain relations with the respondent.
10. Jagdish Chand (PW-3) has corroborated the statement of PW-2 Pawan Thakur. According to him, appellant used to quarrel in the matrimonial home.
::: Downloaded on - 15/04/2017 20:53:25 :::HCHP 511. RW-1 Milap Chand has proved Ext. RW-1/A from the original record. This complaint was filed by the appellant before .
the Women Commission, Dharamshala on 10.7.2006.
12. Appellant has appeared as RW-5. She has categorically denied that on 2.4.2006, she has threaten to commit suicide by going towards village well. She admitted that petition under Section 125 CrPC was filed against the of respondent, his brother and wife.
13. Mother of the appellant has appeared as RW-6.
rt According to her testimony, she has tried to patch-up the matter by visiting the matrimonial house of her daughter. Her daughter was ready and willing to live with the respondent. Family members of the respondent used to torture her daughter for bringing insufficient dowry. She was residing separately since 2006, from her husband.
14. Marriage between the parties was solemnised on 30.1.2006. According to the respondent, marriage was not consummated by the appellant. She used to misbehave with him and used to threaten to commit suicide. She has deserted him.
However, fact of the matter is that the appellant was ready and willing to live with the respondent. Even mother of the appellant has deposed that her daughter was ready and willing to live with respondent. Appellant has performed all the marital obligations.
::: Downloaded on - 15/04/2017 20:53:25 :::HCHP 6However, fact of the matter is that she was constrained to file a complaint under Section 498A IPC and also under Section 125 .
CrPC. It is the absolute right of the wife to file a complaint against her husband and family members in case she is treated with cruelty, generally for bringing insufficient dowry. It was the obligation of the respondent to maintain the appellant. It was only when she was not maintained by the respondent that the of appellant had filed petition under Section 125 CrPC. Not only this, appellant has also filed a petition under Section 12 (1) of the rt Protection of Women From Domestic Violence Act before the CJM Kangra at Dharamshala being case No. 198-IV-07. Learned CJM has directed the respondent to provide residence to the appellant at village Choli, Bangana in the rented accommodation already with him or in the alternative to provide `1500/- per month as rent for the accommodation to be hired by the appellant.
Respondent was further directed not to commit any act of domestic violence against the appellant. She has also highlighted her plight by approaching women commission as per Ext. RW-
1/A. Appellant was forced to live separately from her husband since June, 2006. It is reiterated that she was always ready and willing to live with her husband as per evidence on record. Since marriage between the parties has been consummated even as per the observations of the Additional District Judge, there was ::: Downloaded on - 15/04/2017 20:53:25 :::HCHP 7 no reason that she would threaten to commit suicide on 2.4.2006.
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15. It has also come in the statement of the mother of the appellant that the respondent and his family members demanded `1,50,000/-. Observations of the learned Court below that the behaviour of the appellant was abnormal is against evidence. Respondent has forced the appellant to leave the of matrimonial home by not providing her sufficient accommodation as well as maintenance. She was forced to live with her parents.
16. rt Their Lordships of the Hon'ble Supreme Court in Manisha Tyagi vs. Deepak Kumar reported in 2010(1) Divorce & Matrimonial Cases 451, have explained the term 'cruelty' as under:
"24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonable be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that would be harmful or injurious to continue the cohabitation with the other spouse.
Therefore, to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty.
However, in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce."
17. Their Lordships of the Hon'ble Supreme Court in Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC 476, have explained the term 'cruelty' as under:
::: Downloaded on - 15/04/2017 20:53:25 :::HCHP 8"19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to .
various outbursts of behaviour which can be termed as cruelty.
Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it ma be just an attitude or an approach. Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any of predetermined rigid formula. Cruelty in matrimonial case can be of infinite variety - it may be subtle or even brutal and may be by gestures and word. That possible explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial case are never closed.
21. This Court is reminded of what was said by Lord Reid in rt Gollins v. Gollins about judging cruelty in matrimonial cases. The pertinent observations are (AC p.660) ".. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."
22. " About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi at AIR p. 123, para 5 of the report: (SCC p.108, para 5) "5. It will be necessary to bear in mind that there has been (a) marked change in the life around us. In matrimonial duties and responsibilities in particular, we find 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. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties."
::: Downloaded on - 15/04/2017 20:53:25 :::HCHP 918. Their Lordships of the Hon'ble Supreme Court in Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957 .
SC 176 have held that two essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held that desertion is a matter of inference to be drawn from the facts and circumstances of of each case. Their Lordships have held as under:
"What is desertion? "Rayden on Divorce" which is a standard work on the subject at p.128 (6th Edn.) has summarized the rt case-law on the subject in these terms:-
"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".
The legal position has been admirably summarized in paras 453 and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd Edn.), VoL 12, in the following words:-
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of ::: Downloaded on - 15/04/2017 20:53:25 :::HCHP 10 desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence".
Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for .
example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention of aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding rt the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances to each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a ::: Downloaded on - 15/04/2017 20:53:25 :::HCHP 11 desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt.
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Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard CJ. in the case of Lawson v. Lawson, 1955-1 All E R 341 at p. 342(A), may be referred to :-
"These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution....... "
With these preliminary observations we now proceed to examine the evidence led on behalf of the parties to find out whether of desertion has been proved in this case and, if so, whether there was a bona fide offer by the wife to return to her matrimonial home with a view to discharging marital duties and, if so, whether there was an unreasonable refusal on the part of the husband to take her back.
19. rt In view of the discussion and analysis made herein above, the appeal is allowed. Judgment dated 13.2.2013 rendered by the learned Additional District Judge, Fast Track Court, Una (H.P.) in HMA Case No. 14/86/RBT-FTC-No. 8/11/2006, is set aside. HMA Petition No. 14/86/RBT-FTC-No. 8/11/2006 is dismissed.
All pending applications are also disposed of.
(Rajiv Sharma) Judge July 26, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:53:25 :::HCHP