Rajasthan High Court - Jaipur
Purshotam Dass vs Smt. Purnima on 24 May, 2006
Equivalent citations: RLW2006(3)RAJ2392
JUDGMENT R.P. Vyas, J.
1. This Civil Miscellaneous Appeal is directed against the judgment and Decree dated 14.07.2004, passed by the Judge, Family Court, Jodhpur, whereby the divorce petition filed by the appellant -' Purshotam Dass Under Section 13(1)(i)(ia)(iii) of the Hindu Marriage Act, 1955, has been dismissed on the ground that the appellant has failed to produce any cogent and convincing evidence before the Family Court, which may persuade it to hold that the cruelty has been committed by the respondent-wife.
2. Brief facts, giving rise to the instant appeal, are that on 15.11.1997, the appellant - Purshotam Dass filed a petition for dissolution of marriage solemnized between the parties on 15.02.1989 on the ground that the respondent-wife, at the time of the marriage, was suffering from incurable skin disease and mental disorder and this fact was suppressed by the parents of the respondent-wife. It was also averred in the petition that the. behaviour of the respondent,-wife was cruel towards the appellant-husband and his family members. Not. only that, but she has also attempted to commit suicide by pouring kerosene on her body and she has also threatened to commit suicide by jumping from the roof of the matrimonial house. On 18.10.1997, the respondent-wife executed an agreement on the stamp paper of Rs. 100/- that she is voluntarily leaving the house of her husband-Purshotam Das at Barmer and is going to Jodhpur. Whatever house-hold items given to her by her. parents at the time of marriage, are being taken by her to Jodhpur. She further stated in the written agreement that she does not want to remain in Barmer as she does not feel happy there., She also stated that she has requested her husband to leave Barmer and come down and settle at Jodhpur, but he did not accede to her request as he is a bonafide resident of Barmer and is carrying on business there. She stated that out of three, daughters, two elder daughters can live with her husband and she wants to retain the youngest daughter - Meghna with her. Lastly, she stated that she would be continuously receiving Rs. 700/- per month as maintenance allowance for herself and her youngest daughter - Meghna. No-one from her in-laws' side has pressurised her to leave Barmer and settle down at Jodhpur.
3. On the basis of the pleadings of the parties, the learned Family Court framed the issues to the effect that whether the respondent-'wife has committed cruelty with the appellant-husband as alleged in the petition. If so, then whether the appellant-petitioner-husband is entitled to get the decree of divorce against the respondent wife.
4. The petitioner-Purhshotamdas examined himself as P.W.I and stated that at the time of the marriage, his wife-Poornima was suffering from skin disease and was not mentally sound. Thus, according to the petitioner-husband, living with such type of wife itself is a cruelty. After marriage, he tried, to get her cured, but was unsuccessful and her entire body was giving foul smell. He also examined PW 2 Aasulal Khatri, who is known to both the parties. Aasulal expressed his inability, to make any statement with regard to skin disease, and mental disorder of the respondent-wife. However, he stated that Poornima was pressurising the appellant to leave Barmer and settle at Jodhpur and on not paying any heed to her wishes, she has threatened to commit suicide and had gone to the house of her parents. In the cross-examination, he stated that the stamp paper was purchased and executed by the respondent-wife as per her own sweet-will. He was also signatory to the document.
5. Poornima (NAW-1) has examined herself and stated in her statement that she was married with the appellant on .15.02.1989, according to the Hindu rites. At the time of fever, her skin turns white and she has to take the medicines and on taking medicines, the skin becomes quite normal. She stated that she does not have a regular skin disease. She also stated that she is not suffering from any mental disorder and is mentally sound. In the cross-examination, the respondent-wife stated that she has been suffering from skin disease right from childhood. She stated that prior to engagement, she herself has disclosed this fact to the petitioner-husband that at the time of fever, her skin turns white. She also stated that she is mentally sound, but she remains depressed due to headache. Bhanwarlal (NAW-2), who is father of the respondent-wife has stated that a sum of rupees one lakh was demanded from her daughter. He further stated that no demand was made at the time of the marriage and her in-laws' were behaving with her well. He also stated that the demand, of amount was not made by the husband of Pbornima.
6. The learned Judge, Family Court, Jodhpur decided both the issues against the petitioner-applicant Purshottam Dass and dismissed the petition vide Judgment dated 14.07.2004.
7. Being aggrieved by the Judgment dated 14.07.2004, the appellant has. filed the instant miscellaneous appeal.
8. It is submitted by the learned Counsel for the appellant that the learned Family Court has not properly considered, the grounds raised in the divorce petition and has not considered the written statement, in which the facts of skin disease and mental disorder and living separately from the appellant-husband since 20.10.1997 are admitted.
9. It is also submitted by the learned Counsel for the appellant that the respondent-wife has left the house of the husband-appellant on her own, without any reason and she has also misbehaved with the parents of the appellant. Apart from that, many a times, she has tried to commit suicide by pouring kerosene oil on her body and has also threatened the appellant to commit suicide by jumping from the roof of the matrimonial house. According to the learned Counsel, these facts stand established and proved from the statement of P.W. 2 Aasulal.
10. It is contended by the learned Counsel for the appellant that the learned Family Court has also ignored the fact that the respondent-wife was suffering from the skin disease and was mentally unsound at the time of the marriage. This fact was deliberately suppressed by the parents of the respondent-wife at the time of marriage.
11. Lastly, it is argued by the learned Counsel for the appellant that the respondent-wife has left her matrimonial house on her own sweet-will, after executing the agreement (Exhibit 1- A) before the Notary Public. The respondent wife has also admitted her signature on Exhibit 1-A. Thus, the respondent-Wife is living separately from the husband-appellant since 20.10.1997. Since the respondent-wife herself has admitted that it is not possible for her to live with her husband at Barmer and has been living with her parents for the last 7 years at Jodhpur, so, on this count also, the decree Under Section 13 should be passed in favour of the appellant. Apart from that, looking to the considerable long period of separation as. well as the future of the parties, the decree of divorce should be granted to The appellant. Alternatively, it is submitted that Under Section 10 of the, Hindu Marriage Act, the decree for judicial separation may be passed as the wife is living separately from her husband- appellant for the last 7 seven years and she has admitted in Exhibit 1/A that it is not possible for her to live with ret husband at Barmer and slid has come to Jodhpur to settle down on her own sweet-will.
12. Per contra, it is submitted by the learned Counsel for the respondent-wife that the findings of the learned Family Court are perfectly justified and are based on sound reasonings and appreciation of the evidence available on record. Apart from that, the appellant-husband has failed to establish and prove cruelty, alleged to have been committed by the respondent-wife. So, the learned judge, Family Court, Jodhpur has rightly held that in the absence of any cogent and convincing evidence, it is not possible to pass any decree in favour of the appellant- husband Under Section 13 of the Hindu Marriage Act.
13. It is further submitted by the learned Counsel for the respondent-wife that the learned Judge, Family Court, Jodhpur has rightly held that Exhibit 1-A - the agreement was executed on 18.10.1997 and the application for dissolution of marriage was filed by the appellant-husband on 15.11.1997. Thus, according to the learned Family Court, in order to obtain and initiate the proceedings for dissolution of marriage, the agreement (Exhibit 1-A) was got executed by the appellant-husband or at his behest. The learned Family Court also rightly found that it has come in evidence of Smt. Poornima that after executing the agreement (Exhibit 1-A) both have come to Jodhpur by taking domestic goods in the truck. Thus, according to the learned Family Court, it appears that by assuring her to live at Jodhpur together, the agreement (Exhibit 1-A) was got executed by or at the instance of husband-appellant. This agreement (Exhibit 1-A) was got executed, only with an ill intention to file a petition for dissolution of marriage. According to the learned Counsel, this fact stands corroborated from the. statement of Smt. Poornima herself, in which she has admitted that seven years ago, i.e., in the year, 1997, she has attempted to commit suicide by pouring kerosene oil on her body. learned Counsel submits that she was so mentally depressed that she attempted to commit suicide and in consequence thereof, the agreement (Exhibit 1-A) was executed.
14. It is also submitted by the learned Counsel for the respondent that the learned Family Court has rightly held that in the absence of any cogent and convincing evidence which may lead to the conclusion that the behaviour of the respondent-wife was so cruel that it was not possible for the appellant to live with her peacefully, the decree Under Section 13 of the Hindu Marriage Act cannot be granted in favour of the appellant.
15. In support of his contentions, learned Counsel for the respondent has placed reliance on the decision given by their Lordships of the Supreme Court in Naveen Kohli v. Neelu Kohli AIR 2006 SCW 1550, in which while dealing with the ground of cruelty in divorce petition Under Section 13 of the Hindu Marriage Act, it was held by their Lordships of the Supreme Court that 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 spouse. It must be something more serious than 'ordinary wear and tear of married life'. Every .matrimonial conduct, which may cause, annoyance to the other, may not amount, to cruelty. In Sharda v. Dharmpal 2003(4) SCC 493), it was held by their, Lordships of the Supreme Court that it is trite law that for the purpose of grant of a decree of divorce, the petitioner must establish that unsoundness of mind of the respondent is incurable or his/her mental disorder is of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with his/her spouse. The medical testimony for arriving at such a finding although may not be imperative, but undoubtedly would be of considerable assistance to the Court. However, such medical testimony being the evidence of experts would not leave the Court from the obligation of satisfying itself on the point in issue beyond reasonable doubt. The burden of proof of the existence of requisite degree of mental disorder is on the spouse making the claim on that state of fact. Similarly, in Perminder Charan Singh v. Harjit Kaur , with regard to cruelty and desertion, it was held by their Lordships of the Supreme Court that the conduct of the appellant is certainly not above board and he has not been able to prove satisfactorily, rather he miserably failed to prove the 'reasons of cruelty and desertion against the respondent-wife. Thus, in such a situation, it was held by their Lordships of the Supreme Court that in the. absence of cogent and convincing reasons, the concurrent findings arrived by the two Courts below cannot be interfered with.
16. We have heard learned Counsel for the parties and scrutinized, evaluated and examined the material available on record. So far as contentions of the learned Counsel for the appellant that respondent-wife has been suffering from the skin disease and is mentally unsound, has left the matrimonial house on her own after executing the agreement (Exhibit 1-A), misbehaved with the parents of the appellant-husband, tried to commit suicide by pouring kerosene on her body and also threatened to commit suicide by, jumping from the roof of the matrimonial house, which amounts to cruelty by the wife with the husband and they are living separately since 20.10.1997, this itself is a sufficient ground for decree of divorce - it may be mentioned, that Smt. Poornima (NAW-1) has herself stated in her statement that generally she feels headache, but certainly, she is not a mental patient. She admitted that she is suffering from the skin disease and the doctor has advised her not to take the tension. It may be mentioned that allegation that wife was suffering from skin disease, by itself does not indicate any degree of gravity of the disease. There is nothing to suggest that disease is of such a grave nature that One is not reasonably expected to live with spouse with such disease. Nor it is a case that the disease has aggravated since marriage. Apparently, suffering from a disease is an accident of nature and not a contribution by the person. To constitute suffering from disease to be cruelty is not attributed to any act of patient, but is outcome of a situation which makes it: cruel to compel a person to live with another with such disease suffering from any and every disease by itself is not constituted as a required degree of mental disorder. The applicant-appellant has failed to establish the nature of skin disease to be such that from which it can be inferred that one cannot be reasonably expected to live with another without apprehension to his physical or mental health. In fact, the pleadings d o not travel beyond the conduct of concealment of such existing disease before marriage rather than the seriousness of disease which makes it impossible for husband to live together. The fact that parties have- lived together and discharged their marital obligations for more than eight years, raised family by three daughters, belie the contention of the appellant that compelling him to live with respondent with the alleged skin disease amounts to cruelty. The same cannot be sustained.
17. So far as mental d is order is concerned, at best it can be aid that due to depression, wife has once attempted to commit suicide as she has herself admitted in her statement that she poured Kerosene on her body and tried to commit suicide. However, such incidence falls short of required degree of mental disorder which may be considered as ground for divorce. It may be mentioned that the decree can be passed on this ground, provided the mental disorder is held to be not curable. A party may behave strangely or oddly inappropriate and be progressive in deterioration in the level of work which may lead to a conclusion that he or she suffers from an illness of slow growing developing over the years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. A few strong instances indicating short temper and somewhat erratic behaviour on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder. The Court, however, indisputably is empowered to satisfy itself as to whether a party before it suffers from mental illness or not. In matrimonial disputes, the Court has also a conciliatory role to play. The primary duty of a Court is to see that truth is arrived at. On. the. ground of irretrievable breakdown of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances that the Court may use this ground for dissolving a marriage. The appellant has failed to make out such a case,.
18. So far as execution of agreement (Exhibit 1 -A) and living separately from the appellant since 20.10.1997 are concerned, it may be pointed out that Exhibit 1-A was executed on 18.10.1997 and the appellant-husband filed the application for dissolution of marriage on 15.11.1997. This betrays design of the appellant to obtain such, a statement from wife to lay foundation for dissolving marriage. However, at best, the agreement (Exhibit 1-A) can be construed as an agreement to live separately at Jodhpur without dissolving marriage, for the reason that wife did not feel at home at Banner. The agreement does not disclose any intention on the part of executant to bring the marital ties at close. It only indicates that due to constant desire of wife to shift the matrimonial home at Jodhpur, and husband's resistance to such an idea that due to his business interest at Barmer, the parties agreed that wife may shift to Jodhpur with the youngest daughter, for which husband should provide expenses. Household requirements were carried along with shifting of the wife and daughter to Jodhpur. At best, it can be inferred that wife's insistence that husband must leave Barmer and seek his livelihood and future elsewhere, as a condition of living together was not reasonable. But the conduct complained of has to be examined taking into consideration all the facts and circumstances of the case and then to arrive at a conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Apart from that, the conduct has to be considered in the background of several factors such as social status of parties, their 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.
19. 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 born in mind before disposing of the petition for divorce. 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, cannot be treated as cruelty.
20. It is. pertinent to mention here that where a petition for dissolution of marriage or in the alternative for judicial separation has been filed by husband on ground of cruelty on the part of wife, on considering the evidence on record, it is to be seen that whatever cruel conduct there was on the part of wife, it was in the nature of retaliation to the provocation of the husband. The husband cannot be allowed to take advantage of his provocative conduct for the purpose of proving legal cruelty on the part of the wife. Each case, has to be pondered over on the basis of its own facts and circumstances.
21. It is also pertinent to mention here that insofar as the allegations of cruelty are concerned, it is to be established by the petitioner-husband that the conduct of the respondent-wife has been of such a nature so as to cause danger to life, limb or health, so as to give rise to a reasonable apprehension of such a danger. This has been accepted to be the meaning of cruelty and the expression 'cruelty' has been held to be rather difficult to define. It depends on facts and circumstances of each case which is to he assessed bearing in mind the social status of the parties, their custom and traditions and the environment in which they are living.
22. No doubt, treating the petitioner with cruelty is a ground for divorce Under Section 13(1)(i-a) of the Hindu Marriage Act, but the word "cruelty" has not been defined under the Hindu Marriage Act. In relation to matrimonial matters, it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. The cruelty can be said to be an act committed with the intention to cause suffering to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger may not amount to cruelty, though it may amount to misconduct. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Hindu Marriage Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury suffering or to have injured health. Cruelty may be physical or mental Mental cruelty is the conduct of other spouse which, therefore, postulates a treatment of the petitioner which such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. The cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would in general, be dangerous for a spouse to live with the Other. Thus, in this view of the matter, each case has to be judged on its own merit. Cruelty need not always be explicitly spelt out. It implies harsh behaviour of certain intensity and persistence. Cruelty cannot fall under any strait jacket formula and each case has to be judged on its own merits. In the instant case, the Family Court has rightly found on the facts and circumstances of the case that the petitioner-husband has failed to prove the allegations of cruelty attributed to the respondent-wife. Otherwise also, the averments made in the petition and the evidence led in support thereof, clearly shows that the allegations, even if held to have -been, proved, would only show the sensitivity of the petitioner with respect to the conduct, of the respondent which cannot be termed more than ordinary wear and. tear of the family. Thus, the petitioner has failed to prove and establish the allegation of cruelty on the part of wife and the decree of divorce cannot be granted.
23. It may be mentioned that the appellant has sought a. decree for dissolution of marriage and alternatively, Under Section 10 for judicial separation on the ground of cruelty on the part of the wife-respondent. It may be pointed out that when there are ordinary quarrels between husband and wife and not so serious or damaging as to constitute cruelty and they both are looking after children and the 1 marriage has not irretrievably broken down, no decree of divorce can be granted to the husband.
24. In the instant case, on appreciation of the evidence on record, that the husband has failed to establish and prove required cruelty against the wife and the appellant-husband has also failed to prove and establish, that the wife-respondent is suffering of mental disorder or incurable skin disease of such a nature so as to consider the living with wife will assume a reasonable apprehension about of husband's mental and physical health so as to construe it cruel to compel the . husband to live with his spouse.
25. However, at the same time it is also true that the respondent-wife has been living at Jodhpur separately from the appellant-husband since 20-10.1997 and a period of more than seven years has also passed and they did not live together during this period and the wife is said to have left her matrimonial house on her own sweet-will after executing the agreement dated 18.10.1997, in the circumstances noted above.
26. The Marriage Laws (Amendment) Act, 1976 has inserted Section 13A in the Hindu Marriage Act, 1955 to give statutory recognition to the judicial-evolved law. Section 13A of the Hindu Marriage Act provides that in any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except insofar as, the petition is founded on the grounds mentioned in Clauses (ii), (vi) and (vii) of Sub-section (1) of Section 13, the Court may if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
27. Consequently, taking into consideration all the aforesaid facts and circumstances of the case, especially the fact that they have been living separately since 20.10.1997, in the circumstances noted above, it will be in the interest of justice to pass a decree for judicial separation Under Section 10 of the Hindu Marriage Act, instead of passing a decree of divorce Under Section 13 of the Act.
28. In the result, the appeal is partly allowed. The appellant and the respondent are granted judicial separation Under Section 10 of the Act. Prayer of dissolution of marriage is refused. The judgment of the trial Court passed on 14.07.2004 stands modified as indicated above.
29. No costs.