Allahabad High Court
Smt. Manisha Srivastava vs Rohit Srivastava on 9 January, 2015
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- FIRST APPEAL No. - 568 of 2012 Appellant :- Smt. Manisha Srivastava Respondent :- Rohit Srivastava Counsel for Appellant :- Amit Kumar, Anil Bhushan, Anil Kumar, Smt. Renu Rajat Counsel for Respondent:-Rupak Chaubey, A.K.Gupta, K. Ajit Hon'ble Pradeep Kumar Singh Baghel,J.
This first appeal is preferred by the appellant-wife against the judgment and order dated 30th May, 2012 and decree dated 10th July, 2012 passed by the District Judge, Jalaun at Orai in Marriage Petition No. 1508 of 2008 (Rohit Srivastava v. Smt. Manisha Srivastava) under Section 13 of the Hindu Marriage Act, 1955 (for short, the "Act").
It is necessary to set out in some detail the facts which gave rise to this appeal. The appellant was married with the respondent on 27th April, 2007 according to Hindu rites at Lucknow. After marriage, they went to Goa on a sojourn and returned from there on 08th May, 2007. On the very next day i.e. 09th May, 2007 the appellant went to her father's house at District Jalaun. The respondent-husband is a resident of district Lucknow. At that point of time, he was posted as an Assistant Commissioner, Trade Tax, at Rudrapur, District Udham Singh Nagar. On 25th June, 2007 the appellant-wife came back to Lucknow. It is alleged by the respondent-husband that there was change in her behaviour towards him and his aged parents and she started humiliating and insulting his family members. She also started treating the respondent-husband with cruelty. The respondent tried to change the behaviour of the appellant-wife and also tried to know the reason for the change of her behaviour. The parents of the respondent told him that in his absence the appellant used to talk over cell phone for hours together and some unknown people used to visit her. When the mother of the respondent raised objection to her behaviour, she explained that the visitors are her friends of the college days and she would not like any interference in her personal matter. The father of the appellant was also apprised of about her behavioural changes.
On 19th September, 2007 when the appellant was living with her husband at Rudrapur, her father visited there and she went back with him to Jalaun. The father of the appellant had assured the respondent that in future she would behave normally. In the meantime, the appellant conceived and after living for a short time at Lucknow, she went back to her father's house on the excuse that she has got to appear in the B.Ed. examination. Enquiry revealed that there was no such examination of the appellant. The respondent visited her father's house and the appellant came back to Lucknow but her behaviour again became aggressive at Lucknow and on several occasions she created ugly seen, which attracted the neighbours of the husband, and on several occasions in presence of the neighbours she had insulted the aged parents of the respondent-husband.
It is stated that the appellant is a characterless lady and she has illicit relationship with her maternal uncle Dr. Jitendra. She used to talk to him over telephone and Dr. Jitendra used to visit Lucknow and Rudrapur to meet her. It is pleaded that on one occasion in the absence of the respondent, Dr. Jitendra made a visit to Lucknow and the mother of the respondent had seen the appellant with Dr. Jitendra in an objectionable position. When his mother protested the behaviour of the appellant, she asked her to mind her own business. It is alleged that Dr. Jitendra also threatened the mother of the respondent. It is pleaded that when the respondent-husband drawn the attention of her father to these facts, he replied that it is a lifestyle of elite class and the respondent has to adjust with her daughter.
On 31st March, 2008 the appellant gave birth to a female child at Jalaun. The respondent and his mother went to Orai Hospital to see her. On 27th July, 2008 she came to Lucknow along with newly born child but she told the respondent that she would not like to live with his parents. Thus, the respondent brought her to Khatima, where he was posted. It is averred that the appellant again started living in objectionable style of life. She used to talk her friends over telephone for hours together. She admitted that she used to talk with Dr. Jitendra and threatened the respondent not to interfere in her lifestyle. The respondent informed the father of the appellant about her conduct and on 27th August, 2008 the father of the appellant and Dr. Jitendra came to Khatima, where they physically assaulted the respondent-husband and abused and humiliated him. The appellant left the house along with her father and Dr. Jitendra. It is also stated that the appellant had lodged a first information report (for short, the "F.I.R.") at Police Station Jalaun which was registered as Case Crime No. 589 of 2008, under Sections 498-A, 323, 504 & 506 I.P.C. and 3/4 of Dowry Prohibition Act. She had also registered cases, being Case No. 1 of 2009, Smt. Manisha Srivastava v. Rohit Srivastava, under Section 17 read with Sections 20 and 22 of the Protection of Women From Domestic Violence Act; Misc. Case No. 3 of 2009, Smt. Manisha Srivastava & others v. Rohit Srivastava, under Section 125 of the Criminal Procedure Code (for short, the "Cr.P.C.") for maintenance; and Case Crime No. 961 of 2010, under Sections 452, 323 & 504 I.P.C.
On these facts, the husband-respondent moved a petition under Section 13 of the Act for divorce of marriage in the Court of the Principal Judge, Family Court, Lucknow. It was registered as Case No. 1508 of 2008. The case was transferred to District Judge, Jalaun at Orai.
The appellant filed a written statement and contested the case of the respondent-husband. It was averred in the written statement that all the allegations against her regarding her character are concocted, baseless and false. In fact, the husband and his family members demanded a dowry of Rs.75,00,000/- from her father. When her father expressed his inability to meet out the said demand of Rs.75,00,000/-, they started treating the appellant with cruelty and she was abused and humiliated and at times she was also physically beaten. She was treated with cruelty. When she informed her father about the demand of dowry and their cruelty, her father in the month of June, 2007 visited her husband's place and requested them not to treat the appellant with cruelty, but they continued to treat her in the same manner. On 25th & 26th August, 2008 the respondent made a phone call at the midnight to her father and threatened that in case Rs.75,00,000/- is not paid to him within two days, he may take back the appellant otherwise she would be killed. On 27th August, 2008 the father of the appellant made a complaint to the Superintendent of Police, Khatima in writing. The respondent, his mother and brothers thrown out the appellant from the house and they kept her jewelery and cloths etc.. It is averred that at the Mediation Centre at Udham Singh Nagar she had made an application for conciliation which is still pending. It is also averred that on 21st September, 2008, the respondent, his mother, father and brothers came to Jalaun and both the families tried to work out some amicable solution. They pressurized her family to withdraw the application/complaints made at Udham Singh Nagar. The father of the appellant wanted an assurance from the husband's family that in future they would not make any demand of dowry and they would not treat the appellant badly. At this suggestion, it is stated, the husband's family got annoyed and they started beating the appellant and her family members at their own house at Jalaun. The husband and their family left Jalaun on the same day and this incident was promptly reported at the Police Station Jalaun, where Case Crime No. 589 of 2008 was registered under Sections 498-A, 323, 504, & 506 I.P.C. and 3/4 of Dowry Prohibition Act. The appellant has totally denied her relationship with Dr. Jitendra.
The Court below on the basis of the pleadings of the parties framed the following four issues:
(I) Whether the plaintiff has tortured the defendant for dowry and neglected her?
(II) Whether the defendant treats the plaintiff and his family with cruelty and neglects them? If yes, what is its effect?
(III) Whether the defendant is living the life of adultery?
(IV) Whether the plaintiff is entitled for any relief?
The respondent-husband in support of his case had got himself examined as P.W.-1 and filed the following documents pertaining to criminal cases between the parties:
(i) Copy of F.I.R. relating to Case Crime No. 589 of 2008, Manisha v. Rohit and others, under Sections 498-A, 323, 504 & 506 I.P.C. and 3/4 of Dowry Prohibition Act, registered at Police Station Jalaun, District Jalaun;
(ii) Copy of plaint of Case No. 1 of 2009, Smt. Manisha Srivastava v. Rohit Srivastava, under Section 17 read with Sections 20 and 22 of the Protection of Women From Domestic Violence Act;
(iii) Copy of plaint of Misc. Case No. 3 of 2009, Smt. Manisha Srivastava and others v. Rohit Srivastava, under Section 125 Cr.P.C.;
(iv) Copies of the F.I.R. relating to Case Crime No. 961 of 2010, State v. Rohit Srivastava, under Section 452, 323 & 504 I.P.C. and the final report submitted by the Police in the said case crime;
(v) Copy of the order dated 18th April, 2011 passed by this High Court in Application under Section 482 Cr.P.C. No. 40227 of 2010, Rohit Srivastava and others v. State of U.P. and others;
(vi) Copy of the order dated 12th January, 2012 passed by this High Court in Application under Section 482 Cr.P.C. No. 15938 of 2009, Rohit Srivastava v. State of U.P., and Application under Section 482 Cr.P.C. No. 17603 of 2009, Avinash Chandra Srivastava and others v. State of U.P. and others;
(vii) Copies of the objection and affidavit filed by the appellant to the bail application of the respondent;
(viii) Copies of the F.I.R. relating to Case Crime No. 45 of 2009, under Sections 452, 323 & 506 I.P.C., Police Station Khatima, District Udham Singh Nagar, lodged by the respondent against the father of the appellant and others, and the charge-sheet submitted by the Police in the said case crime; and
(ix) Copy of the information supplied by the Additional Superintendent of Police, Udham Singh Nagar dated 28th January, 2009 under the Right to Information Act, 2005.
The appellant-wife had got herself examined as D.W.-1 and filed inter alia the following documents:
(i) Copies of various photographs of marriage of the parties;
(ii) Copy of the order dated 28th February, 2012 passed by this Court in Civil Misc. Writ Petition No. 11028 of 2012, Rohit Srivastava v. Manisha Srivastava;
(iii) Copy of the plaint of Misc. Case No. 3 of 2009, Smt. Manisha Srivastava and others v. Rohit Srivastava, under Section 125 Cr.P.C.;
(iv) Copy of the comments dated 26th November, 2011 submitted by the Mediation Centre, Jalaun at Orai;
(v) Copy of the comments submitted by the Paramarsh Kendra, Lucknow in respect of Criminal Revision No. 15938 of 2009, Rohit Srivastava v. State of U.P.;
(vi) Copy of the order dated 02nd March, 2012 passed by this High Court in Writ Petition No. 8163 of 2012, Smt. Manisha Srivastava v. State of U.P. and others;
(vii) Copies of the application moved by the father of the appellant before the Station House Officer, Jalaun, and report dated 27th August, 2008 submitted to the Superintendent of Police, District Udham Singh Nagar;
(viii) Copies of papers relating to some of the criminal cases, details of which have been mentioned above.
The Court below has decided the Issue Nos. 1, 2 and 3 together. The Court has found that the appellant and her family has instituted several false cases against the respondent-husband; no evidence was brought on record to establish that the husband and his family has made any demand of dowry; the father of the appellant has initiated criminal cases; the appellant has failed to establish that the respondent-husband wanted to remarry; from the evidence it was established that the appellant-wife has treated the husband and his family with cruelty; the appellant-wife has failed to establish that she was treated with cruelty in connection with demand of dowry; the respondent-husband has failed to establish that the wife was living an adulterous life; there is irretrievable breakdown of marriage; and, both the husband and the wife are living separately for the last four years and they have no relationship as husband and wife. On these findings, the Court below has decreed the suit by granting divorce vide impugned judgment and order dated 30th May, 2012.
Before this Court an application under Order XLI Rule 27 of the Code of Civil Procedure was moved on behalf of the respondent-husband. On 16th May, 2014, learned Counsel for the appellant-wife stated that he has no objection in case the application is allowed, thus, the said application was allowed and the additional evidence was taken on record. Along with the application the respondent had filed five documents, namely, (i) objection raised by the appellant Smt. Manisha Srivastava against the discharge application of the respondent-applicant in Criminal Case No. 121 of 2012 relating to Case Crime No. 589 of 2008, under Sections 498-A, 323, 504, 506 I.P.C. and 3/4 of Dowry Prohibition Act; (ii) objection raised against the discharge application of the applicants in Criminal Case No. 122 of 2012 relating to Case Crime No. 961 of 2010, under Sections 452, 323 and 506 I.P.C.; (iii) judgment and order of this High Court dated 28th May, 2012 passed in Criminal Misc. Application No. 40227 of 2010, Rohit Srivastava and others v. State of U.P., under Section 482 Cr.P.C.; (iv) judgment and order dated 05th September, 2013 passed by the High Court of Uttarakhand at Nainital in Criminal Misc. Application (C-482) No. 335 of 2009; and, (v) enquiry report dated 27th February, 2013 of District Probation Officer/ Women Protection Officer, Jalaun at Orai in the case of domestic violence, being Case No. 01 of 2009, instituted by the appellant Smt. Manisha Srivastava.
It is stated that these documents could not be brought on record as they are subsequent to the divorce suit having been finally heard by the Court below, therefore, in the interest of justice all these documents have been permitted to be taken on record as additional evidence with the consent of learned counsel for the appellant, although a formal objection was filed by the learned Counsel for the appellant. A perusal of the objection would indicate that no serious objection has been raised and the denial is general and vague.
I have heard learned Counsel for the appellant and the learned Counsel for the respondent.
Learned Counsel for the appellant has submitted that the respondent-husband has nowhere taken the specific plea of mental cruelty in the plaint/divorce petition filed on his behalf for grant of divorce under Section 13(1)(i-a) of the Act, therefore, in absence of any plea taken in the plaint about the mental cruelty, the divorce cannot be granted under Section 13 of the Act. The respondent has taken only ground of adultery for grant of divorce which has not been proved as the finding has been recorded by the Court below that the husband has failed to prove the adultery. He further submitted that the respondent-husband has not proved the mental cruelty beyond reasonable doubt. Learned Counsel for the appellant has contended that 'irretrievable breakdown of marriage' is not a ground for divorce under Section 13 of the Act. Thus, the finding recorded by the Court below is illegal and against the settled law. It was further contended that the finding of adultery recorded by the Court below holding that the issue of adultery is not proved and, on the contrary, holding that the character of the appellant is suspicious, are self-contradictory findings. The Court below while granting decree of divorce has not given any alimony to the appellant and her minor girl child, which is mandatory under Section 25 of the Act.
It is submitted that the appellant is a non-working lady and she has a minor child of about 6 years of age from her husband-respondent, but no permanent alimony has been granted by the Court below. The appellant is entitled to the alimony of Rs.30,00,000/- (rupees thirty lacs) for herself and her minor child. It was urged that the husband-respondent cannot take advantage of his own wrong, therefore, a decree of divorce should have been refused under Section 23(1)(a) of the Act. Lastly, it was urged that the appellant is always willing to live with her husband, the respondent, and all the mediation and conciliation proceedings have failed only because of the respondent.
In support of his submissions, learned Counsel for the appellant has mentioned following cases in his written submission but these cases were not cited at the bar; in Pushpavathi alias Lalitha v. Manickasamy, 2002 (4) AWC (Supp) 3002 (SC); Smt. Alka v. Rajendra Kumar, 2012 (1) ADJ 353; Manisha Tyagi v. Deepak Kumar, (2010) 4 SCC 339; Neelam Kumar v. Dayarani, (2010) 13 SCC 298; Smt. Purnima Gupta v. Ajit Kumar Gupta, 2009 (4) ALJ 186; Brajesh Kumar v. Smt. Anjali, 2009 (1) ALJ 424; Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112; Ashok Kumar Jain v. Sumati Jain, AIR 2013 SC 2916; and U. Sree v. U. Srinivas, AIR 2013 SC 415.
Learned Counsel for the respondent-husband submits that the appellant-wife has filed a large number of criminal complaints and has instituted criminal proceedings against the respondent-husband which have caused humiliation, embarrassment and mental agony. The conduct of the appellant-wife of filing frivolous complaints has caused mental cruelty. He further submits that continuing conduct of lodging complaints after complaints and reiterating the same in the written statement to the divorce petition and in the oral testimony amounts to a mental cruelty. The appellant has no intention to live with the respondent-husband and her offer to resume the marital life is mere an eyewash. Due to the past conduct of the appellant-wife it is now impossible for the respondent-husband to live together and the emotional bond between the parties is dead for all purposes. He lastly urged that the wife is demanding a permanent alimony which the respondent-husband is ready to pay. He has drawn the attention of the Court to the affidavit filed by the respondent-husband to the effect that he is ready to pay Rs. 30 lacs as permanent alimony to the appellant-wife.
Sri K. Ajit, learned counsel for the respondent-husband, has placed reliance on the judgments in K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226; Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558; Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511; Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288; Smt. Mamta Dubey v. Rajesh Dubey, 2009 (5) ADJ 516 (DB) (LB); and, Ajay Ashok Khedkar v. Laleeta Ajay Khedkar, II (2010) DMC 97 (DB).
I have considered the rival submissions advanced by the learned Counsel appearing for the parties and perused the records.
The husband filed the divorce petition under Section 13 of the Act mainly on the ground of cruelty and desertion. He has made serious allegations against the character of the appellant-wife that she has illicit relations with Dr. Jitendra, who is a close relative of the appellant-wife, with whom, according to the respondent-husband, she used to talk on phone for hours and Dr. Jitendra frequently visited Lucknow as well as Rudrapur.
From the pleadings and the evidence on the record it is evident that the allegations made by the husband are based on suspicion. No evidence was filed to prove the allegations of the adultery against the appellant-wife. Various incidents referred to in the plaint and the evidences led do not prove the allegation that the wife was living in adultery. The principal allegation about the illicit relationship is against Dr. Jitendra, who is none other but her real Mama. The other allegation that she used to talk with several persons on telephone, has not been proved by the respondent-husband. No call details and no name of the persons, who are alleged to have been called by the appellant-wife in her house and in her bedroom, have been disclosed. It is unbelievable that when the husband-respondent was posted at Rudrapur and the appellant-wife accompanied him, she would call her friends in her bedroom. It is not on the record that she had studied at Rudrapur earlier or she had lived there in past. Calling her friends in the official accommodation and talking to them in her bedroom, has not been established by any reliable evidence. The husband-respondent has not adduced any evidence in support of his allegation of adultery against the appellant-wife. The Court below has recorded a clear finding that the husband has failed to prove the adultery. Learned counsel for the respondent-husband was unable to satisfy the Court that the said finding suffers from any perversity or illegality. Therefore, in my view the finding recorded by the Court below on the Issue No.3 that there was no evidence of adultery, does not suffer from any illegality.
In spite of the said finding, the Court below has recorded a finding that character of the wife-appellant was not beyond suspicion.
The Court below only on the basis of suspicion has doubted the character of the appellant-wife. In my view, the finding of the Court below is self-contradictory. At the one hand, the Court below has recorded the finding that the husband has failed to prove the allegation against Dr. Jitendra but at the same time it has recorded a finding that the character of the wife is doubtful. There was no material on the record to support the said finding. Merely on the basis of suspicion a finding cannot be recorded about the character of a lady. Thus, the finding that the character of the lady is doubtful, is not sustainable.
Insofar as the finding of the Court below in respect of demand of dowry is concerned, it has recorded a finding that the allegation of the wife that after marriage the family of the husband had demanded Rs.75 lacs in dowry, is not proved and it has been disbelieved by the Court. The Court below has noticed the fact that no evidence has been adduced by the wife-appellant to prove the said allegation. Learned counsel for the appellant has failed to point out any evidence on the record to demonstrate that the said finding of the Court below is incorrect.
As regards the criminal cases filed by the appellant-wife, as detailed above, are concerned, as many as four criminal cases have been instituted by the wife against the husband and she is pursuing seriously all the criminal proceedings. She had filed a Case Crime No. 589 of 2008, Manisha v. Rohit and others, under Sections 498-A, 323, 504, 506 I.P.C. and 3/4 of Dowry Prohibition Act, at Police Station Jalaun; Case Crime No. 961 of 2010 was instituted against the husband under Section 452, 323 & 504 I.P.C.; she has opposed the bail application of her husband; she had also filed an F.I.R. which was registered as Case Crime No. 45 of 2009, under Sections 452, 323, & 506 I.P.C. at Police Station Khatima, District Udham Singh Nagar, wherein father of the husband was also implicated and a charge-sheet has been submitted by the Police in the said case; she had also filed an objection against the discharge application filed by the husband; and, she filed a complaint alleging domestic violence which was registered as Case No. 1 of 2009 under the Protection of Women from Domestic Violence Act.
Filing of large number of criminal cases against the husband is not disputed. Some of the criminal cases are still pending against the husband and his family.
In her statement, the appellant-wife has admitted the fact that several criminal cases have been filed against the husband. In her statement she has made an allegation against the husband and his family that they had demanded Rs.75 lacs in dowry and she was subjected to humiliation and she was also physically assaulted and they continued to make the demand of dowry. She has stated that she had made a complaint to the Police about her physical assault. She has not referred to any evidence in her statement about the demand of dowry to her family. The husband in his statement has made an allegation against Dr. Jitendra. From his statement his allegation that he had seen his wife in an objectionable posture with Dr. Jitendra does not inspire any confidence as he failed to recall the date of the incident or the exact time. Insofar as his allegation that his wife used to talk on mobile phone with unknown persons is concerned, he has mentioned that once he has tried to trace the number of the persons with whom she was talking but he did not pursue the matter further. This fact clearly demonstrates that the allegation against the wife has not been proved that she used to talk with unknown persons on phone regularly.
Thus, in my view, the finding recorded by the Court below that all these acts of the wife amount to mental cruelty and there is irretrievable breakdown of marriage, do not suffer from any illegality. The husband has brought on the record by way of additional evidence several documents relating to various criminal proceedings instituted by the appellant-wife against him. On the no objection of the learned counsel for the appellant-wife, the application for filing the additional evidence was allowed, therefore, those documentary evidences indicating various criminal proceedings pending against the husband are part of the record and those are unrebutted documentary evidences.
Now turning to the judgments cited by the learned counsel for the appellant, I find that in the case of Manisha Tyagi (supra), on which learned counsel for the appellant has placed heavy reliance, the husband had filed a petition under Section 13 of the Act after two years of marriage only on the ground of cruelty. He had described his wife as quarrelsome, rude and ill-mannered. The wife had also made an allegation against the husband of the cruelty when unwarranted demands for dowry were not met by her parents. In the said case, the trial Court had recorded a finding that the husband has failed to establish cruelty by the wife. Aggrieved by the order of the trial Court, the husband filed an appeal before the High Court. The learned Single Judge granted an alternative relief to the husband by passing a decree for judicial separation under Section 10 of the Act. The wife went in appeal before the Division Bench and after re-evaluation of the evidence, the Division Bench concluded that all the efforts of reconciliation between the parties have failed and they are living separately. Therefore, the Division Bench passed an order of divorce. The Supreme Court in appeal has set aside the order of the Division Bench of the High Court and restored the order of the learned Single Judge whereby an order for judicial separation was passed. Hence, in view of the aforesaid facts, the said case is distinguishable and not applicable in the present case.
In Vinny Parmvir Parmar (supra) the dispute was with regard to permanent alimony and maintenance under Section 25 of the Act. In the said case, the Court has laid down the law in respect of permanent alimony as per Section 25 of the Act. In Ashok Kumar Jain (supra) the husband and the wife were living separately for 16 years and the husband had suppressed the fact that he was already married and was having a son at the time of marriage with Smt. Sumati Jain. After marriage it came to her knowledge that he was earlier married and had a son from the said marriage. The said fact was not revealed by the husband in his matrimonial advertisement. In view of the said facts, the said decision does not help the appellant.
Learned counsel for the respondent-husband has placed reliance on a judgment of a Division Bench of this Court in First Appeal No. 175 of 2010 (Smt. Ruchita Srivastava v. Vivek Swaroop), decided on 31st May, 2013. In the said case also, the wife had filed criminal cases against the husband and it was submitted on behalf of the wife that mere filing of criminal case does not amount to cruelty. It was submitted on behalf of the husband that after lodging the F.I.R. against him, she contested the matter seriously and he was arrested. The act of the wife was treated to amount a mental cruelty. The wife had opposed the bail application of the husband in Sessions Court and he had to remain in jail for 12 days. In view of the said facts, the Division Bench, after considering a large number of decisions of the Supreme Court, has held that the marriage of the parties has irretrievably broken. The relevant part of the judgment is quoted herein below:
"It is relevant to note that efforts for reconciliation between the parties were made which failed. The Principal Judge, Family Court also made effort on 6th April, 2009 which conciliation failed. On 23rd April, 2012 in this appeal also the Court has directed the parties to appear on 11th May, 2012 before the Mediation and Conciliation Centre, High Court. The Mediation and Conciliation Centre has submitted a report on 11th May, 2012 that although both the parties have appeared but not willing to reconciliation. After 27th July, 2007 both the parties are living separately. In the case of K. Srinivas Rao vs. D.A. Deepa (supra) the Apex Court has held that the fact that marriage has irretrievably broken is a relevant consideration for deciding matrimonial cases. We are satisfied that marriage having irretrievable broken between the parties and husband having dealt with cruelty, the decree for grant of divorce as well as the order of the Principal Judge, Family Court rejecting the application of the wife under Section 9 of the Act are to be maintained."
Against the said judgment of the Division Bench, a special leave petition, being Petition for Special Leave to Appeal (Civil) No. 23660 of 2013 (Ruchita Srivastava v. Vivek Swaroop), was filed by the wife which was dismissed by the Supreme Court on 12th August, 2013.
In K. Srinivas Rao (supra), the Court found that the wife caused mental cruelty through the complaints containing indecent allegations and initiating number of judicial proceedings making the life of the other spouse miserable and it would certainly amount to irretrievable break down of marriage. The Supreme Court held thus:
"31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree."
The effect of filing of the criminal cases against a spouse has been considered by the Supreme Court in the case of Naveen Kohli (supra), wherein the Supreme Court has referred a large number of criminal cases instituted by the wife against the husband in the following paragraphs of the judgment:
"8. The appellant alleged that the respondent got a false first information report registered against him under Sections 420/467/468 and 471 IPC which was registered as Case No. 156 of 1995. According to him, the respondent again got a case under Sections 323/324 IPC registered in Police Station Panki, Kanpur City and efforts were made to get the appellant arrested.
9. The appellant filed Civil Suit No. 1158 of 1996 against the respondent. It was also reported that the appellant was manhandled at the behest of the respondent and FIR No. 156 of 1996 was filed by the eldest son at the behest of the respondent against the appellant in Police Station Panki complaining that the appellant had physically beaten her son, Nitin Kohli.
12. The respondent had also filed a complaint against the appellant and his mother under Sections 498-A/323/504/506 IPC at Police Station Kohna.
13. The respondent in her statement had admitted that she had opposed the bail of the appellant in the criminal case filed at Police Station Kotwali on the basis of legal advice. In that very statement she further admitted that after the police had filed final report in both the criminal cases relating to Police Station Kotwali and Police Station Kohna, she had filed protest petition in those cases.
14. This clearly demonstrates the respondent's deep and intense feeling of revenge. The respondent in her statement had also admitted that she had filed a complaint in the Women's Cell, Delhi in September 1997. According to the appellant, the respondent had filed Complaint No. 125 of 1998 against the appellant's lawyer and friend alleging criminal intimidation which was found to be false.
15. According to the appellant, the respondent filed a forged complaint under Sections 397/398 of the Companies Act before the Company Law Board, New Delhi and in the affidavit of the respondent she stated that the appellant was immoral, alcoholic, and was having affairs with numerous girls since marriage. She also called him a criminal, infidel, forger and her manager to denigrate his position from the proprietor to an employee of her company.
16. The appellant also mentioned that the respondent filed a false complaint in Case No. 1365 of 1988 using all kinds of abuses against the appellant.
17. On 8-7-1999, the respondent filed a complaint in Parliament Street Police Station, New Delhi and made all efforts to ensure the appellant's arrest with the object of sending him to jail. The appellant was called to the police station repeatedly and was interrogated by the police and only after he gave a written reply and the matter on scrutiny was found to be false, the appellant with great difficulty was able to save himself from imprisonment."
The Supreme Court after considering the criminal cases has recorded the following conclusion:
"74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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.
75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist."
The facts of Naveen Kohli (supra) are somewhat similar to that of the case in hand.
Considering the totality of the facts and circumstances of this case, the Court can safely arrive at a conclusion that the conduct of the wife in filing several criminal and civil cases against the husband conclusively demonstrate that their marriage is beyond repair due to the bitterness by said acts.
I find that the submission of the learned Counsel for the appellant that the Court below has allowed the divorce petition on the ground of irretrievable break down of marriage, is not correct. The Court below has found that filing of large number of criminal cases by the wife against the husband amounts to cruelty. In view of the said finding, the judgment relied upon by the learned Counsel for the appellant in the case of Neelam Kumar (supra) has no application in the present case. It is true that the Supreme Court in Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1, has observed that it is questionable as to whether the relief sought by the appellant therein on the ground of irretrievable break down of marriage is available to him. The Supreme Court has referred to its earlier decision in Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379, in this regard. But in a recent decision in the case of Malathi Ravi, M.D. v. B.V. Ravi, M.D., (2014) 7 SCC 640, though the Supreme Court has referred to the decision of Naveen Kohli (supra), yet has affirmed the judgment of the High Court granting the divorce on the ground of cruelty. In the instant case also, the Court below has found that filing of criminal cases by the wife against the husband amounts to cruelty.
After careful consideration of the matter, I am of the view that the judgment of the Court below does not suffer from any infirmity insofar as the grant of divorce is concerned. Accordingly, the judgment and decree of the Court below are affirmed.
It takes the Court to the last submission made by the learned counsel for the appellant-wife that no permanent alimony has been granted by the Court below. The respondent-husband has filed an affidavit, wherein he has agreed to give an alimony of Rs.30 lacs. The relevant part of the affidavit reads as under:
"2. That by means of this supplementary affidavit the deponent undertakes to pay a sum of Rs.30 lacs as permanent alimony for the appellant Smt. Manisha Srivastava and the daughter Km. Ratna as a condition for decree if the Hon'ble Court chooses to exercise such discretion for confirming the decree of divorce."
Learned counsel for the appellant-wife has not filed any reply to the said affidavit.
Having regard to the fact that the couple has a girl child of six years of age, who is living with the appellant-wife, and regard being had to her social status, in my view, the ends of justice would be met if following directions1 are issued:
(I) The husband-respondent shall deposit a sum of Rs.35 lacs (Rupees thirty-five lacs) in favour of the girl child within a period of six months before the Principal Judge, Family Court, Jalaun at Orai.
(II) The amount so deposited shall be kept in a fixed deposit in a nationalized bank in the joint name of the appellant-wife and the minor daughter.
(III) The appellant-wife can draw quarterly interest and spend it on the education of her daughter.
(IV) After the minor girl attains the age of majority, the joint account shall continue and they would be at liberty to draw the amount for the education or any urgent need of the girl.
The appeal is partly allowed in the above terms. There shall be no order as to costs.
Order Date :- 09th January, 2015.
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Hon'ble Pradeep Kumar Singh Baghel,J.
The appeal is partly allowed.
For order, see my order of the date passed on the separate sheets (twenty pages).
Dt.- 09th January, 2015.
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