Chattisgarh High Court
Soumitra Rai vs Rupa Rai on 13 July, 2022
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 32 of 2017
Soumitra Rai S/o Late Santosh Rai, Aged About 50 Years R/o M I G
02/11, Hudco Bhilai Nagar, Tahsil And District Durg, Chhattisgarh,
Chhattisgarh --- Appellant
Versus
Rupa Rai W/o Soumitra Rai, Aged About 42 Years R/o M I G- 01/365,
Hudco Bhilai, Tahsil And District Durg, Chhattisgarh, Chhattisgarh ---
Respondent
For the Appellant : Mr. T. K. Jha, Advocate.
For the Respondent : Mr. Vipin Tiwari, Advocate
DB : Hon'ble Shri Justice Goutam Bhaduri, Judge &
Hon'ble Mrs. Justice Deepak Kumar Tiwari, Judge
JUDGMENT/ORDER
Per Goutam Bhaduri, J
13 -07-2022
1. The present appeal is against the judgment and decree dated 24.01.2017 (Annexure A-1) passed in Civil Suit No.176 of 2015 by the Family Court whereby the petition filed by the husband under Section 13 (1)(ia)) of the Hindu Marriage Act was dismissed. Hence the instant appeal by the husband.
2. The brief facts pleaded by the husband is that he got married to respondent wife on 22.2.1997. it is pleaded that the marriage was solemnised by suppressing the fact that she was suffering from paranoid schizophrenia and she is being treated by different doctors. The husband further pleaded that during the course of matrimonial life, this fact 2 was accepted by the father of non-applicant in his letters that his daughter was a psychopath. It was further pleaded that out of wedlock, two children were borne and before marriage he used to reside in joint family and even after marriage, the appellant, respondent wife and their children were part of the joint family. It was pleaded that the wife used to restrain him to give salary to the joint family. She was quarrelsome and envious in nature. It was further pleaded that without any rhyme and reason, she used to remain out of the house during the entire nights and used to misbehave with the mother-in-law and family members and assault them. The petitioner further states that false allegations were attributed to him that he is a person of loose character having illicit relations. It was pleaded that she further made a report against the sister in law under the Domestic violence Act, 2005 and called up the control room police and false allegations were made that she is being assaulted. In the result, the husband and two sons were constrained to stay in Police Station for hours and thereafter they were allowed to set at large. He further stated that in office hours, the wife used to reach the office and create nuisance, consequently he was unable to perform his duties regularly. Further it was stated that being aggrieved by such behaviour, the mother of husband made a report to the Mahila Police Thana Durg wherein counseling was held but the wife did not appear. Thereafter, the husband started living in a separate house by taking a rented house because of the cruelty meted out by the wife.
3. It was pleaded that on 4 different dates the wife called the 3 police on which the husband and sons were taken to the Police station and after detaining them for hours, they were released in the late nights. So the aforesaid act of the wife would tantamount to cruelty and the marital relations between the two have come to an end. Therefore, it is prayed that the marriage may be dissolved by decree of divorce.
4. Per contra, in reply, she denied all the averments and it was stated that the children were not allowed to meet her. Instead she was subjected to cruelty.
5. On behalf of husband, total 7 witnesses were examined namely the appellant himself as P.W.1, Shyamal Roy (PW2) Ravi Roy (P.W.3), Anish Roy (P.W.4), Aditya Roy (P.W.5) Smt. Noorjahan (P.W.6) and dr. Prakash Narayan Shukla (P.W.7). On behalf of wife Roopa Roy, she examined herself as D.W.1 along with Ajanta Nandi (P.W.2) and Hema Suresh.
6. The learned family Court after evaluating the facts and evidence dismissed the petition. Hence this appeal by the husband.
7. Learned counsel for the appellant would submit that there are several instances of cruelty which were proved by documentary evidence and despite that the family court failed to appreciate the same and did not apply its mind. It is further stated that cursorily the orders have been passed without looking to the gravity and the nature of evidence. It is further submitted that the documents which are filed shows the falsity of the report lodged by the wife and the cruelty meted out by her to the mother-in-law was proved by documentary evidence apart from oral evidence which 4 includes the allegations of illicit relation. It is stated that if all the acts are cumulatively taken into account, it would lead to show that it is an out-and-out cruelty on the part of wife towards the husband, therefore, the decree of divorce was necessitated in the facts of this case.
8. Per contra, learned counsel for the respondents would submit that the wife was victim of cruelty. He further submits that the statement of husband would show that the wife was treated in a way which would not otherwise be normally accepted would show that the wife wanted to save the matrimonial life. He would submit that the alleged letters written by the father of the wife would show that it was addressed to a dead person, therefore, false evidence is tried to be created. Reading the statement of D.W.1 it is further stated that she was being treated with cruelty and in course of such treatment, the husband did not want to continue with her. He further submits that nothing is on record to show that the wife was suffering any mental disorder, therefore, the judgment and decree of the court below is well merited, which do not call for any inference.
9. We have heard learned counsel for the parties and have also perused the pleading and evidence produce before the Court.
10. Primarily it appears that the pleading would show that the ground of divorce was on the basis of cruelty. The Supreme Court in Samar Ghosh Versus Jaya Ghosh (2007) 4 SCC 511 has indicated the illustrative cases wherein the inference of mental cruelty can be drawn. Para 101 is relevant and quoted below:
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"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive :
(I) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot
amount to cruelty, frequent rudeness of
language, petulance of manner,
indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and
humiliating treatment calculated to
torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than
jealousy, selfishness, possessiveness,
which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.6
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty.
The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiii) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
11. In K Srinivas Rao Vs. D. A. Deepa (2013) 5 SCC 226 at para 12 the Supreme Court noted down the fact of Samar Ghosh case where the husband and wife had lived separately for more than sixteen and half years and this fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. Further in a mere recent decision reported in AIR 2022 Delhi 72 (Ritesh Babbar versus Kiran Babbar) the Delhi High Court relying on the decision of Supreme Court in 7 K. Srinivas Rao v. D.A. Deepa (Supra) has held that making unfounded allegations against the spouse or his relatives in pleadings, filing of complaints etc., which may have adverse impact on the job of the spouse in the facts of a case amounts to causing mental cruelty to the other spouse and the same view was expressed by the Supreme Court in K. Srinivas v. K. Suneetha (2014) 16 SCC 34 .
12. In view of the above legal proposition, we have examined the evidence led by the parties.
13. The husband was examined as P.W.1. In examination-in- chief, it was stated that before the marriage the wife was suffering with mental disorder which was completely suppressed and the marriage was performed. It is further stated that after she became pregnant she was behaving in an unnatural way which was informed to father-in-law. When he went to his father-in-law, he saw that he was ailing, as such, he was being treated. The factum of treatment is also admitted by D.W.1 the wife that her father was treated for Cancer in Sector 9 hospital. Therefore, he was taken to Nagpur too. The husband further stated that thereafter the father of wife had handed-over some more documents about the treatment. The letter of father of wife is exhibitted as Ex.P-3. In an inland letter, certain illness about the mental decease has been written which was addressed to Santosh Kumar Roy, and it appears to be an old one. The contents of the said letter which appears to be admitted by the wife wherein she has stated that she was admitted in the hospital of Dr.Prakash Narayan Shukla at Para 7 but maintained the stand that the degree of disease was not at the higher side. 8
14. Dr. Prakash Narayan who was examined as P.W.7 affirmed Ex.P-2 which is a certificate issued by him in the year 1993 and stated that the wife was suffering from Paranoid Schizophrenia and he described the symptoms of such patient as follows : speaking at random with absurdity, unnecessary talk, creating doubts and illusions in the mind, listening many kinds of sounds in the ear, feeling insecurity, getting aggressive, hurling abuses and creating panic and committing assaults. This witness has stated that the patient was given 8 times electric shock and the last treatment was given on 25th August, 1995. The date of marriage was on 22.09.1997 and considering the statement, documents, it appears that subsequently she might have recovered and degree of such ailment was reduced. The petition filed by the husband before the Family Court was not for nullity of marriage but was on the ground of cruelty committed by the wife because of her unnatural behaviour. The primary ground was raised that because of cruel behaviour of the wife by making different complaints to the police and to the employer, it has caused mental cruelty. Consequently, we deliberated ourselves to find out as to whether the cruelty narrated by the husband as against the wife has been proved or not.
15. The husband further stated that because of misbehavior of wife, he started living separately along with his children. Rent agreement (Ex.P/6) dated 6-7-2012 is proved, which was executed between Smt. Noorjahan and Soumitra Rai and thereafter such tenancy was extended for subsequent years and last tenancy agreement was executed on 15-7-2014. The 9 sons of the appellant P.W.4 and P.W.5 have also corroborated the fact that the father started living separately at HUDCO Colony. The appellant has narrated that the wife used to abuse and quarrel with the family members, while he was in joint family. This fact is further proved by an application filed by the mother of the appellant namely; Smt. Niharika Rai before the SHO, Sector-8 Kotwali, PS Bhilai Nagar, which is proved as Ex.P/10. In the said application, certain averments have been made by her that threat was extended to them by the respondent that they would be inculpated in some criminal case. She further stated that the respondent used to behave unnaturally. The complaint was made that respondent used to abuse all family members, used to call the children while they were studying, she further used to beat the door, used to breach the locks and when the mother-in-law tries to console her, the respondent used to extend threat that she will inculpate the family members in false case. The mother of appellant stated that she is 85 years old and could not move without support and with such threat of report they live in fear of moving around court and police station. Therefore, she requested to evict the respondent from the house.
16. The husband further stated that the wife had filed an application under the provisions of the Domestic Violence Act against the husband and her sister-in-law. The said application is marked as Ex.P/7 and stated that the said report was false and nothing transpired after enquiry. He further stated that having apprehended that they would be inculpated in a false case a report was made by him to the 10 Superintendent of Police. On the basis of the said report, the wife was called for counseling, but the wife did not appear. The document Ex.P/5 has been filed about counseling, which shows that she did not attend. The cumulative bundle of facts would show that nothing was established against the husband despite report made by wife. As a result of such behaviour the husband was forced to stay separately from the joint family as otherwise there was no occasion to stay separate. Such part of act to force the husband to live separate from his parents would also amount to cruelty.
17. Another statement has been made by the husband that on different dates reports were made by the wife to the police, but all the reports proved to be false. Document (Ex.P/8) dated 7-11-2012 is the information received from the police under the RTI Act with regard to the reports made by the wife, which shows that on 18-10-2011 at about 10.00 pm; on 12-2-2012 at about 11.00 pm; and on 5-10-2012 at about 10.00 pm the wife had called the Police Control Room and made a report about the assault by husband. Further it shows that the Patrolling party when reached it was found that it was a family dispute and hence they came back.
18. PW-4 Arnav Rai, son of the parties, has deposed that he stays with his grandmother and the mother (respondent) stays on upstairs and no body stops them to visit their mother. This narration would show that no pressure is being extended over the kids. Likewise, PW-5 Aditya Rai, who is also son of the parties, stated that after the death of their grandfather, the mother (respondent) used to come to the house in the late hours and on being enquired by the father 11 (appellant), she used to call the police and when the children used to ask they were also abused. He further stated that their mother used to quarrel in the house on trivial issues and call the police, therefore, the father used to stay separately. The information received from the police under the RTI Act, corroborated the statement of children that the mother used to lodge report to the police, but it was not found to be correct.
19. Document (Ex.P/12) is an office memo of Steel Authority of India Limited (SAIL) wherein the appellant is working. By the said memo, the appellant was asked to give certain explanation. Reading of the same would show that his wife had made certain written complaints against him. Statement of DW-1 Smt. Rupa Rai (respondent/wife) is perused. No documents have been placed to show the nature of complaint. With regard to allegation of illicit relation of the appellant with another lady has not been substantiated by DW-2 Ajanta Nandi.
20. The husband further stated that the wife made allegation of illicit relation with his sister-in-law (Babhi), despite the fact that he is treating her as a mother. Another aspect would show that in cross-examination a suggestion was given by wife that the husband has married with one Soma Chhatterjee, who is a divorcee, but nothing was substantiated to prove the same. DW-2 Ajanta Nandi also levelled allegation with regard to illicit relation of the appellant outside marriage. The Supreme Court in the matter of Narendra v K. Meena reported in (2016) 9 SCC 455 observed that there is nothing to substantiate the 12 allegations levelled by the wife with regard to an extra marital affair. The Supreme Court further observed that it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one's character of having an extra marital affair is quite tortuous for any person - be it a husband or a wife.
21. Ravi Rai (PW-3), brother of the appellant, has made a statement that the respondent used to call the police on trivial issues by dialing 100. From the statement of PW-1 Soumitra Rai (appellant) would show that suggestion was given by the wife in the counseling that in case Rs.25.00 lacs is paid along with Stridhana she would think over about divorce.
22. The over all evidence, which has come on record, would show that
1. the wife had made unfounded allegations of illicit relation on husband with another lady outside the marriage, which was not proved by any circumstantial evidence;
2. she made frequent complaints to the police on different occasions and for that the husband and children were made to sit at Police Station for hours. Such complaints were unfounded and were not found correct and eventually nothing transpired;
3. allegation of illicit relation of the appellant with his sister-in-law (Babhi) was made which was vehemently opposed by the appellant that he used to treat his sister-in-law (Bhabhi) as a mother.
4. mother of the appellant made a report to the police to evict the respondent from the premises by assigning the reason that the respondent used to abuse them and also threatened them that they will be inculpated in a false cases;
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5. the husband was forced to stay separate from joint family because of misbehaviour of wife;
6. an application under the provisions of the Domestic Violence Act was filed by the wife against the husband and his sister-in-law (Babhi), but the facts were not substantiated;
7. both the sons have deposed against the mother (respondent) that she used to abuse and call the police every time when any query was being made to her; and
8. she made complaint to the employer of the appellant for which explanation was called for, but what was the nature of complaint that was not substantiated.
23. The aforesaid facts would show that on unfounded allegations, false reports were made by the wife against the husband, therefore, by applying the principles of law laid down by the Supreme Court in the matters of Samar Ghosh (supra) and K. Srinivas Rao (supra), it can be held that the same would amount to cruelty. Thus, we are of the opinion that on the basis of evidence the husband has proved that he was subjected to mental cruelty by the physical acts of the wife. Accordingly, the impugned judgment and decree passed by the Court below is set aside and divorce is granted in favour of the appellant/husband. The marriage solemnised between the parties is dissolved and accordingly a decree be drawn.
24. Now coming to grant of alimony to wife, it is apparent from the facts and pleadings that the wife is getting alimony of Rs.12,000/- per month from the husband. Now, as stated, the husband has retired from service and he could have received retiral dues, therefore, looking to the status of the parties that the husband was an employee of SAIL and wife is 14 a domestic lady and further considering the present market scenario, it would be appropriate to enhance maintenance amount from Rs.12,000/- to Rs.15,000/- per month. Accordingly, it is directed that the appellant shall pay maintenance of Rs.15,000/- per month.
Sd/- Sd/-
(Goutam Bhaduri) (Deepak Kumar Tiwari)
Judge Judge
Rao / Gouri