Madhya Pradesh High Court
Harish Kumar Ledwani vs Smt. Anita Ledwani on 25 September, 2002
Equivalent citations: AIR2003MP186B, AIR 2003 MADHYA PRADESH 197, (2003) 2 HINDULR 716, (2004) 1 MARRILJ 540, (2003) 3 MPLJ 354, (2003) 4 CURCC 430
JUDGMENT V.K. Agarwal, J.
1. This appeal is directed against the judgment and decree dated 3-4-98 in Civil Suit No. 18-A/98 by Additional District Judge, Rewa, dismissing the application of appellant/husband under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'Act' for short), for dissolution of marriage by a decree of divorce.
2. Undisputably, the parties were married on 20-3-1991 at Sindhi Colony Satna, according to Hindu rites and customs. They are now living separately since July 1992.
3. It was averred by the appellant in his petition that the parties resided in the appellant's house at Rewa for a short period after their marriage. Thereafter, the respondent/wife went to her parents' home with one Parasram, whom she used to address as 'Chacha'. It was alleged that the respondent/wife used to misbehave with and maltreat the old parents of the appellant/husband. The appellant/husband tried to persuade the respondent/wife to properly behave with his old parents, but his persuasions fell on deaf ear. The respondent/wife not only did not mend her ways, but also started threatening that she would commit suicide by self-immolation. The appellant/husband complained to the parents of the respondent/wife regarding her misbehaviour, as above. The behaviour of respondent/wife however did not show any improvement. She expressed to the appellant/husband that he should live separately from his parents and start his own business and also told him that he could take money from her parents, for the purpose. The respondent/wife also stopped having marital relationship with the appellant/husband and told him that they would cohabit only on the appellant living separately from his parents and family members.
4. It was further averred by the appellant that in the month of June/July 1992, the respondent/wife went away with her mother and uncle-Parasram. They also lodged a false police report regarding assault on her by the appellant and his parents. The appellant and his parents had to suffer harassment and mental torture due to the said report. The respondent/wife thereafter did not return to the matrimonial home despite the appellant making several efforts. A notice was also sent by the appellant/husband to the respondent/wife, requesting her to return back, but the respondent did not return back to the matrimonial home. The appellant/husband therefore prayed that a decree for divorce be granted.
5. The respondent resisted the application and denied the allegations as above. According to her, she did not misbehave or maltreat the appellant or his parents. She alleged that she went to her parents' home only after obtaining permission from the appellant/husband and his parents. It was alleged by the respondent that after she became pregnant, the appellant/husband and his father wanted to get an insurance policy on the life of the respondent for Rs. Two lacs with oblique motive. According to the respondent/wife, the appellant/husband and his parents were conspiring to end her life after getting the insurance policy issued on her life. The respondent/wife however refused to sign the necessary documents. She has also denied that she threatened the appellant that she would commit suicide.
6. The respondent has further alleged that the appellant had taken away the newly born baby from her. Hence, the respondent/wife had to lodge a police report at Police Station, Rewa. It was also alleged that on the intervention of the police, the infant son of the respondent/wife was returned to her by the appellant/husband and his parents. It was also alleged by the respondent that the appellant had admitted harassment of the respondent/wife in writing at the Police Station and had undertaken that he will not henceforth harass the respondent. The respondent/wife has also denied that she refused to co-habit with the appellant/husband or return to the matrimonial home. It was averred by her that she had to live separately from the appellant on account of misbehaviour and torture meted out to her by the appellant. She has denied that she had treated the appellant with cruelty.
7. The learned trial Court framed issues as to whether the respondent/wife treated her husband-the appellant and his parents with cruelty and also as to whether the appellant treated the respondent/wife with cruelty and turned her out of the house after mentally and physically torturing her?
8. The finding of the learned trial Court in the impugned judgment was that it was not established that it was the respondent/ wife who treated the appellant/husband and his parents with cruelty. The learned trial Court also recorded a finding that in fact the appellant/husband treated the respondent/wife with cruelty and turned her out of the house. The petition of the appellant/husband for divorce was therefore dismissed.
9. The learned counsel for the appellant submitted that the learned trial Court erred in holding that the appellant could not establish that the respondent treated the appellant and his parents with cruelty. It has been submitted that the appellant/husband has led adequate and cogent evidence and examined witnesses to show that the respondent/wife misbehaved with him and his parents and treated them with cruelty. It has also been submitted that the parties are living separately for a long period, and that there are no chances of revival of the marriage. It has therefore been submitted that the marriage of the parties having irretrievably broken down, a decree for divorce deserves to be granted.
10. The learned counsel for respondent however, supported the impugned judgment and decree. It has been submitted that the appellant/husband was cruel towards his wife-the respondent. Consequently, the respondent has been forced to live separately with her parents. It has been submitted that it was not proved that the respondent/wife treated the appellant/husband with cruelty. It vas also urged that the appellant/husband could not take advantage of his own wrong and was not entitled to a decree for divorce. It was therefore submitted by the learned counsel for the respondent that the dismissal of the appellant's petition for divorce by the trial Court, was justified.
11. In view of the rival contentions as above, the main question that arises for consideration is, as to whether the appellant/husband has led relevant and cogent evidence to establish that the respondent/wife treated him with cruelty?
12. It may be noticed that under Section 13(1)(ia) of the 'Act' a decree for divorce can be granted on the ground of cruelty. The term 'Cruelty' has however not been defined in the 'Act'. Cruelty under Section 13(1)(ia) of the 'Act' could be physical as well as mental. There cannot be a dogmatic answer as to what behaviour would amount to cruelty? It has always to be determined on appreciation of the facts and circumstances of each case. The law having no standard by which, to measure the nature and degree of cruel treatment that may satisfy the requirement of Section 13(1)(ia) of the 'Act'; the behaviour inter-se of the, parties will have to be considered and adjudged in order to decide the question of treatment of cruelty by one spouse to the other.
13. In, the instant case, the appellant in his petition has mainly raised grievance of maltreatment and misbehaviour with him and his parents, by the respondent/wife. However, it is noticed that no particulars of the said misbehaviour such as date, time and place etc. and the nature thereof, have been specifiedly pleaded in the petition.
14. The allegations in Para 5 of the petition are that the respondent/wife used to say that the appellant/husband should live separately from his parents and start his own business. It is also alleged therein that in case the appellant/husband so desired, he may take the money for starting his own business from her parents. It may be noticed that the respondent/wife could always think in terms of her husband-the appellant having independent business. If the respondent/wife in that regard suggested to her husband that he should take the necessary amount for starting his independent business from her parents; the same could not be considered an unnatural conduct and could not amount to cruelty.
15. The appellant Harish Kumar Ledwani (AW/1) has stated that his wife would ask him to live separately from his parents. He has further stated that the respondent would quarrel with his parents and misbehave with them. He would call them "Buddha" and "Budhiya". The mother of the appellant Beena Ledwani (AW/3) has also stated to the above effect. Though Shakti Singh Chouhan (AW/4) has also made a statement as above but in his cross-examination he has conceded that the utterances as above were never made in his presence. It is also noticed that the averments as above were not made in the petition for divorce filed by the appellant/husband. Hence, the oral statement as above of the appellant and his mother would not be of much consequence.
16. It may be noticed that the appellant/husband Ashok Kumar Ledwani (AW/1) has also stated that the respondent would not perform any household work. However, there is no allegation in the petition that the respondent did not perform household work. Hence, the oral statement as above, in the absence of averments in his petition in that regard cannot come to the aid of the appellant's case.
17. The petitioner/husband has also averred that the respondent/wife used to go to his parents' home frequently despite protest by the appellant. The appellant has stated in the above context that despite protest by him, the respondent/wife went away with some acquaintance alleging her to be the respondent's grand mother to Satna, and thereafter she went to Waidhan. However, as the allegations to the above effect are missing in the petition for divorce, the appellant's statement as above, cannot be accepted.
18. It is also stated by appellant Harish Kumar Ledwani (AW/1) that in the month of June/July 1992, Parasram had given a telephonic call to his wife-the respondent from Chandralok Hotel at about 10-11.00 P.M., upon which the respondent/wife went there despite protest and resistance by the appellant. It may be noticed in the above context that allegations in para 9 of the petition in the above regard are different from the statement as above. In the said para, it was alleged by the appellant that in the month of June/July 1992, the appellant's uncle Parasram and his mother came to Rewa with whom the respondent went away. On way they also lodged a report at the Police Station. Thus, the statement of the appellant that Parasram had given telephone call to the respondent from Chandralok Hotel, is not supported by his pleadings. Therefore, the said statement of the appellant does not appear to be reliable. Moreover, if the respondent went away with her mother and uncle-Parasram on their asking, the conduct as above, could not be considered unnatural or objectionable.
19. It may also be noticed in the above context that the respondent Smt. Anita Ledwani (NAW/1) has stated that on 27-4-1992, she gave birth to a male child. Thereafter, she went to her matrimonial home, where her father-in-law maltreated and assaulted her, upon which the respondent/wife called her parents. Thereafter, the appellant snatched away her son and kept him in his custody. She further stated that thereafter, she lodged the report with the police and on the intervention of the police at about 5.00 P.M. her son was returned to her. In the foregoing circumstances, it is clear that the respondent had justifiably lodged report with the police, and the appellant himself was responsible for the events forcing the respondent to lodge the report.
20. The respondent has also stated in Para 4 of her statement that the appellant had given an affidavit (Ex.D/1) at Police Station, Rewa. Appellant-Harish Kumar Ledwani (AW/1) has admitted that the affidavit (Ex. D/1) was given by him. It may be noticed that in the said affidavit, the appellant has admitted that the respondent was manhandled and dealt with unwantly earlier. In the said affidavit, the appellant/husband also assured that henceforth she would not be harassed or assaulted. It was also stated by him in the said affidavit (Ex. D/1) that he would now be living separately with his wife, and that he would not give rise to any cause for complaint in future. Obviously, the admissions as above, of the appellant in affidavit (Ex. D/1) lend support to the respondent's allegations that she was being maltreated and assaulted by the appellant and his family members. It would thus appear that it was the appellant who treated the wife with cruelty.
21. Learned counsel for the appellant relying on Balbir Kaur v. Daljit Singh (1997) 1 DMC 377 submitted that a decree for divorce on the ground of cruelty ought to be given. In the said case on consideration of the facts and circumstances of the case, it was held that the wife had meted out cruelty to the husband. However, as noticed above, in the instant case, it has not been proved that the respondent/wife treated the husband with cruelty and therefore the appellant cannot get any assistance from the ratio of the said decision.
22. Learned counsel for the appellant also relied upon the judgment of the Calcutta High Court in Manisha Jha (Smt.) v. Kunal Kanti Jha, (1999) 1 DMC 283, in order to support his contention that a decree for divorce on the ground of cruelty should be granted. In the said case it was observed that harm or injury to health, reputation, the working career or the like, would be important consideration in determining whether the conduct of the respondent amounts to cruelty. It was further held therein that the evidence showed that from the inception of the marriage the wife started disapproving the husband staying with his parents and brothers at the matrimonial home, and was rude in behaviour and used abusive language towards the husband and members of his family and did not take part in the household work. It was therefore held that the wife treated the husband with cruelty. However, that does not appear to be so in the present case and as noticed earlier, the appellant/husband has not properly pleaded or proved that the respondent/wife had treated him with cruelty. Hence, he cannot benefit from the said decision.
23. Learned counsel for the appellant also relied upon G.V.N. Kameswara Rao v. G. Jabilli, 2002 (2) SBR 114 wherein it was observed that the married life between the parties started with up and downs. The spouses did not live together for long and the appellant successfully proved that the attitude of the respondent was not cordial and co-operative, and there were continuous incidents of undesirable behaviour on the part of the respondent resulting in mental cruelty to the appellant. It was observed that the mental cruelty to the appellant is to be assessed having regard to his status in his life, educational background, the environment in which he lived. It was further held that the police report lodged by the respondent must have resulted in traumatic experience to the appellant/husband. It was also observed therein that the relationship between the parties was irretrievably broken and because of non-cooperation and hostile attitude of the respondent, the appellant was subjected to serious traumatic experience which can be safely termed as cruelty, coming within the purview of Section 13(1)(ia) of the 'Act'.
24. However, as already noticed in the instant case, it has not been established that the respondent/wife treated the appellant/husband with cruelty. Hence, the appellant is not entitled to a decree of dissolution of marriage on the ground of cruelty.
25. It may also be noticed that while the proceedings in the trial Court were pending there were efforts of reconciliation. Offer was made by the appellant/husband that he would live with the respondent/wife. In pursuance of the said offer, the respondent/wife went to reside with the appellant. However, as stated by the respondent, the appellant did not take her to the house which he had hired for the purpose and instead he had taken her to some other place consisting of a room which did not have even the basic facilities such as toilet etc. The result was that the respondent had to return back to her parents.
26. Obviously the conduct as above of the appellant/husband would indicate that he was not sincere in his offer and had deliberately created a situation which led to the respondent/wife refusing to live with him. The circumstances in the above regard have been considered by the trial Court in detail in Paras 31 and 32 of the impugned judgment, and it has concluded that the appellant/husband only observed the formality of taking back his wife with him, but in fact he was not serious about living with her. The said finding appear to be justified in the circumstances of the case.
27. In view of above, it would appear that the appellant/husband neither specifically pleaded particulars regarding his allegation of cruelty with him by the respondent/wife, nor has he led satisfactory evidence in the above regard. In fact, the evidence led in the case shows that it was the appellant/husband who was maltreating and assaulting the respondent/wife and was thus cruel to her. Thus, it is the appellant/husband and not the respondent/wife who can be said to be guilty of cruelty. Therefore, the appellant/husband cannot get a decree under Section 13(1)(ia) of the 'Act' on the ground of cruelty by the respondent/wife.
28. The learned counsel for the appellant during the course of arguments has also tried to urge that the respondent/wife without any reasonable cause, is living separately and has refused to cohabit with the appellant and she is thus guilty of desertion. Learned counsel for the appellant therefore relying upon Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308 : AIR 2002 SC 88 has urged that a decree for divorce on the ground of desertion be granted.
29. It appears that in Adhyatma Bhattar Alwar's case (supra) reference was made to an earlier decision of the Apex Court in Bipin Chander Jaisinghbhai Shah v. Prabhawati, AIR 1957 SC 176, in Which it was observed that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition and that desertion must be without reasonable cause and without the consent or against the wishes of the petitioner. It was further elaborated that for desertion so far as the deserting spouse is concerned, two essential conditions must be there:
(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 namely :
(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 aforesaid.
It was also observed therein that the petition for divorce bears the burden of proving those elements in two spouses respectively and their continuance throughout the statutory period.
30. Similarly in Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591, it was observed that desertion for the purpose of seeking divorce under the 'Act' means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. To constitute desertion total repudiation and withdrawal from the matrimonial obligation would have to be established.
31. In the instant case, it is clear that the appellant has not specifically pleaded the ground of desertion as above, neither there is any issue framed by the trial Court on the said aspect of the matter. Moreover, as noticed above the facts and circumstances of the present case as can be deciphered from the evidence led in the case go to show that it was the conduct of the appellant/husband which was responsible for the respondent/wife to live separately. In fact, as was noticed earlier that though the respondent/wife accepted the offer of the appellant/husband to start cohabitating and living with him, but the husband was not sincere about it and did not honestly try for the resumption of marital ties.
32. In view of the above, the contention of the learned counsel for the appellant that he is entitled to a decree for divorce on the ground of desertion has no foundation in pleading, nor is the same acceptable on scrutiny of evidence and material placed on record.
33. Learned counsel for the appellant lastly submitted that since the marriage between the parties has irretrievably broken down, a decree for divorce may be granted. Learned counsel for the appellant in the above context relied upon Smt. Kanchan Devi v. Promod Kumar Mittal another, AIR 1996 SC 3192. In that case the relation between the parties were strained, and they were living separately for more than one decade. The Apex Court observed that there was no possibility of reconciliation between the parties and the marriage between them had irretrievably broken down. In the facts and circumstances of that case, the Apex Court exercised its powers under Article 142 of the Constitution of India and declared the marriage between the parties dissolved. However, it has not been laid down therein that the decree for divorce could be granted without a ground therefor being properly established.
34. Learned counsel for the appellant in the above context also relied upon the judgment of Punjab and Haryana High Court in Naresh Kumar v. Smt. Sarla, (1992) 2 DMC 398, where after considering the fact that the marriage between the parties has irretrievably broken down, a decree under Section 13B of the 'Act' had been granted. However, in the present case the fact situation is different.
35. It has to be borne in mind that a decree of divorce can only be granted if one of the grounds as enumerated in the 'Act' has been made out. If none of such grounds is made out, a decree cannot be granted simply because there has been irretrievable break down of marriage.
36. It may be noted that in Reynold Rajmani v. Union of India, AIR 1982 SC 1261. It has been observed that in all matrimonial legislation initially conservative attitude influenced the grounds on which separation or divorce could be granted. However, later a more liberal attitude has been adopted. It was further observed that though the grounds for divorce have been liberalised, they nevertheless continue to form an exception to the general principle favouring the continuance of the marital tie, and that when a legislative provision specifies the grounds on which divorce may be granted, they constitute the only conditions on which the Court has jurisdiction to grant divorce. In other words a new ground for granting divorce cannot be added by the Courts.
37. Clearly the 'Act' does not provide irretrievable break down of marriage to be a ground for granting a decree of dissolution of marriage. That being so. a marriage cannot be dissolved only on the ground that the marriage between the parties has broken down. Of course if a ground enumerated under the 'Act' for granting a decree of divorce has been made out then while granting relief, one of the consideration may be whether there are any chances of revival of marriage or whether it has irretrievably broken down?
38. It may also be noted that in a recent decision in Chetan Dass v. Kamla Devi, (2001) 4 SCC 250 : AIR 2001 SC 1709, the Apex Court held that the husband having failed to make out a ground for decree of dissolution of marriage, he could not be permitted to take advantage of his own wrong to obtain a decree of divorce merely on the ground that the marriage had irretrievably broken down. It was observed in the said case as under (Para 14 of AIR) :
"Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce."
Reference in the above connection may also be made to Smt. Nitu alias Asha v. Krishan Lal, AIR 1990 Delhi 1 as well as decision in Uma Shankar Joshi v. Smt. Rajeshwari, AIR 1991 Raj 149, Mrs. Swaraj Garg v. K.M. Garg, AIR 1978 Delhi 296 and Smt. Smita Dilip Rane v. Dilip Dattaram Rane, AIR 1990 Bombay 84.
39. In view of the above, the contention of the learned counsel for the appellant that decree for divorce should be granted as the marriage between the parties has irretrievably broken down and there are no chance of resumption of marital ties between them, cannot be accepted, as the appellant has not successfully established any of the grounds for dissolution of his marriage with the respondent.
40. In view of the above, this appeal is devoid of substance and is accordingly dismissed. Parties shall however bear their own costs, as incurred.