Madhya Pradesh High Court
Smt. Vineeta Choudhary vs Radheyshyam on 20 December, 2016
Equivalent citations: AIRONLINE 2016 MP 3
FA-859-2016
(SMT. VINEETA CHOUDHARY Vs RADHEYSHYAM)
20-12-2016
Shri Vishal Dhagat, learned counsel for the appellant.
The matter is heard finally.
Reserved for judgment.
HIGH COURT OF MADHYA PRADESH, JABALPUR
First Appeal No. 859/2016
Smt. Vineeta Choudhary
Radheshyam
Present : Hon. Shri Justice Ravi Shankar Jha
Hon. Shri Justice Vijay Kumar Shukla
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Shri Vishal Dhagat, learned counsel for the appellant.
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JUDGMENT
( /12/2016) Per : Vijay Kumar Shukla, J:
This appeal is filed by the wife/appellant under section 28 of the Hindu Marriage Act (hereinafter shall be referred as 'the Act' in short) against the judgment and decree dated 22/09/2016 passed by the Additional District Judge, Multai District Betul (M.P.) whereby the marriage between the appellant and respondent/husband has been dissolved on the ground of mental cruelty and desertion. The decree of divorce has been granted in favour of the respondent/husband. The court below has further directed that the respondent/husband will pay maintenance of Rs. 4000/- per month from the date of decree till the appellant enters into re-marriage. The court below has directed that the child of the appellant and respondent namely Abhinav shall stay with his father who will provide him the best education and facilities. It has also been directed by the trial Court that the appellant will be at liberty to meet her son at any time without there being any restriction in this regard.
2. The relevant facts of the case in brief are that the respondent/husband filed a petition under section 13 (1) of the Act on the ground of mental cruelty and desertion on the part of his wife. It is undisputed fact that the marriage between the appellant and respondent was solemnized on 18/01/1997 as per Hindu Rites and out of their wedlock one son namely Abhinav was born who is now aged about 12 years. The respondent/husband has submitted that right from very inception of the marriage behaviour of the appellant was non- cooperative and obstinate and she was verbally abusive. She expressed her dislikes towards the appellant and his family and gradually she started misbehaving with the respondent. The respondent is employed in the Indian Railways on the post of Station Master. According to him, it was not possible for him to stay at one place with the family and he was often required to go in the shift of 12 hours each as he was included in the running shifts of Railways. He asserts that because of the said fact appellant was aggressive and wanted that the respondent should spend the full time with her without devoting any time for the duties of service. He alleged that the appellant did not want to live with him and used to unnecessarily suspect his character. It was also alleged by him that she was verbally abusive and used to comment that he is a fool and impotent. It was further alleged that she had never showed any concern for him even when he was not well and was hospitalized at Nagpur and during the crisis period also she did not live with him and did not take any care. She has always been busy on FACEBOOK chatting and mobile. For last more than two years, she is living separately and there is no cohabitation amongst them. He has asserted that she is not interested to continue with the relationship.
3. The appellant denied all these averments and stated that the respondent is responsible for all these situations as he is not interested to continue the marital relationship with her.
4. In the present case, the most important fact is that earlier a civil suit bearing no. 26-A/13 was filed u/s 9 of the Act for restitution of conjugal rights by the respondent. The said suit was decided and an agreement was arrived at between the appellant and the respondent to live together. The fact of filing of earlier suit and the compromise between the parties is an admitted fact. It was alleged by the respondent/husband that the agreement could not materialize because of the obstinate and mulish attitude of the appellant and, therefore, he had no option but to file the suit for divorce.
5. The trial Court on the basis of allegations of the both the parties framed the issues that whether the respondent/husband has been subjected to cruelty by the present appellant and whether the appellant has withdrawn herself from the company of the respondent without there being any reasonable reason. The trial Court after consideration of the evidence and the record, passed the impugned judgment and decree of divorce which is the subject matter of challenge in the present case.
6. We have heard learned counsel for the appellant.
7. The question which arises for consideration is that whether the trial Court has rightly dissolved the marriage on the ground of mental cruelty and desertion on the basis of the evidence available on record.
8. The respondent examined himself as P.W.-1 and his sister Gyanwati (PW-2). He stated in his deposition that the earlier agreement and the proceedings for reconcilliaton could not be materialized because of the stubborn attitude of the appellant. There was no change in her attitude. He made a specific statement that in order to make the relationship cordial he made a tour programme for a Holiday Trip to South India and for that reservations and the other preparations were also made but again the appellant refused and did not make any effort for restitution of the conjugal rights. There has been no cohabitation between them. She continued with her obstinate behaviour which had adversely affected his health and he became the patient of Heart, Sleeplessness etc. He was hospitalzed for treatment at Nagpur and despite a message to the appellant, she did not turn up to see him and has shown absolute unconcern about him. He also stated that she used the word 'neuter' for him which was shared by the appellant with her friends on FACEBOOK etc. On the basis of the pleadings and his statement, respondent submitted that he has been subjected to mental cruelty and as the appellant is deliberately not staying with him for last more than two years, her conduct amounts to desertion therefore, he prayed for decree of divorce on these allegations. The statement of respondent was also supported by deposition of her sister Smt. Gyanwati (PW-2). She also stated that the agreement arrived at between them in the earlier proceedings and the efforts for re- conciliation could not be materialized because of the obstinate attitude of the appellant.
9. The appellant in her rebuttal of the allegations examined herself and his brother Vikram Raghuvanshi as D.W-2. She made allegations about the demand of dowry and harassment by the respondent and the same was also supported by the statement of her brother. It is pertinent to note that marriage was solemnized in the year 1997 and there is a child Abhinav aged about 12 years out of their wedlock. There has never been any complaint of demand of dowry and physical cruelty shown by the respondent to the appellant. The trial Court after the assessment of the evidence of both the parties outright rejected the defence of the appellant regarding physical and mental cruelty and demand of dowry by the respondent. The court has taken into consideration the statement of brother of the appellant namely Vikram (DW-2) who has specifically stated in his statement that there was no demand of dowry or any car etc. by the respondent and no report was lodged by them against him. He has further stated that there has never been any demand of jewelery by the respondent. On the contrary, he stated that when the house was constructed at Hoshangabad, the expenses were spent by the respondent to the tune of about Rs. 50,000/-. On the basis of assessment of evidence in paras 16 and 17, the trial Court found that all the allegations levelled by the appellant against the respondent were without any basis and substance. The allegations were further found to be false from the documentary evidence as well. She has stated that she could not go to Nagpur to see her husband because during the said period her son was not well whereas from the evidence it was proved that her son was well during the said period and was attending the school. The respondent has produced the documentary evidence of Railway Department (Exhibits P-6 to P-8) to show that after the agreement between the parties in the earlier proceedings, he had made all endeavours to restore the relationship of husband and wife with the appellant. He had shown all keenness to restore the relationship with the appellant in the welfare of his son Abhinav. In para 27 of the judgment and decree the Court had written that when the Court asked to her that whether she is ready to live with her husband, she stated that she would not stay with her husband at any cost. On the contrary, when the Court asked the respondent, he stated before the Court that he is ready to live with the appellant for the welfare and future of his son Abhinav. Para 27 of the court below is quoted as under:-
27- izR;FkhZ ifRu ds }kjk vius ifr ds lkFk fuokl ugha djus dk vius dFku esa ;g dkj.k crk;k gS fd mldk ifr vkSj ifr ds fudV laca/kh mls vius lkFk ugha j[kuk pkgrs gSaA vius dFku esa ;g Lohdkj fd;k gS fd mlus viuh cgu dks le>k;k Fkk fd og vius ifr dk /;ku j[ks ijarq og Lo;a Fkd pqdk gSA nksuksa esa ls dksbZ Hkh le>us dks rS;kj ugha gS] tc nksuksa dks ,d lkFk fcBkdj le>kus dk iz;kl fd;k x;k rks nksuks >xM+k djus yxrs gSA U;k;ky; }kjk Hkh vusd voljksa ij muds lkFk fuokl dks muds cPps ds Hkfo"; dks /;ku j[kdj muds >xM+s Hkqykdj ,dlkFk jgus ds fy, vFkd iz;kl fd;k x;kA ifr }kjk U;k;ky; esa O;Dr fd;k x;k fd og vius iq= ds Hkfo"; ds fy, dqN Hkh lgus dks rS;kj gS ijarq ifRu us O;fDr fd;k fd vc og fdlh Hkh dher ij ;kfpdkdrkZ ds lkFk fuokl ugha dj ldrh gSA bl izdkj ;g izekf.kr gS fd vc ;kfpdkdrkZ vkSj izR;FkhZ dk ,d lkFk ifr&ifRu ds :i es fuokl djuk laHko ugha jg x;k gSA
10. So far as the finding of the trial Court regarding desertion is concerned the same is based on admission on the part of the appellant. The court has taken into consideration the statement of the appellant that she herself has stated that she is living alone at Amla and she is not ready to stay with the respondent at any cost. It was also established that reconciliation proceedings in pursuant to the compromise entered into between the appellant and respondent could not be materialized because of obstinate attitude of the appellant, therefore, the finding recorded by the court below regarding desertion is well considered finding on appreciation of the admission on the part of the appellant and the entire evidence.
11. So far as the direction of the court below regarding custody of child Abhinav to his father/respondent Radheshyam is concerned, the same is also based on the admission of the appellant and on appreciation of the facts and evidence. The appellant herself has stated that she is not able to control her son and his education is also not being properly looked after by her. We do not find any illegality in respect of the findings recorded by the court below on the ground of desertion and custody of child Abhinav to the respondent.
12. The co-ordinate Bench of this Court at Gwalior has discussed the dissolution of marriage on the ground of mental cruelty in the case of Sheel Kumari Vs. Asharam, 2016 (4) MPLJ 421. In the said judgment, the judgment passed by the Apex Court in the case of Dr. N.G. Dastane Vs. Mrs. S. Dastane, AIR 1975 SC 1534 has been referred which has elaborately discussed the concept of mental cruelty. The relevant extract of the judgment is reproduced as under:
"The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse,. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances. "(1) The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them over- look or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v.
Gollins (2) ALL ER 966 "In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make bout them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if boththe spouses think and behave as reasonable people."
The said judgment still holds the field and is source of wisdom time and again in respect of mental cruelty .
13. The aforesaid decision was referred to with approval in AIR 2002 SC 2582 (Praveen Mehta Vs. Inderjit Mehta), (2007) 4 SCC 511 {Samar Ghosh Vs. Jaya Ghosh},(2010) 4 SCC 339 {Manisha Tyagi Vs. Deepak Kumar},(2012) 7 SCC 288 {Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal}, (2013) 2 SCC 114 {U. Sree Vs. U. Srinivas}. In all these cases, the judgment rendered in the case of Dr. N.G. Dastane (supra) is relied upon. In the case of Samar Ghosh (supra), the Supreme Court has enumerated the illustrative instances of human behaviour which may be relevant for dealing with the cases of mental cruelty:
âNo 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) ** ** **
(iii) ** ** **
(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) ** ** **
(viii)** ** **
(ix)** ** **
(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) ** ** **
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) ** ** **
(xiv) 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.
14. In the case of Vinod Kumar Subbiah Vs. Saraswathi Palaniappan, 2016 (1) MPLJ (SC) 561, the Apex Court has considered the concept of mental cruelty and held that in the cases where the spouse had duly pleaded and proved instances of mental cruelty by the other spouse and the trial Court has passed the decree of divorce after examining the evidence at great length and had come to a reasoned conclusion that the actions of the spouse amounted to cruelty, in such cases, the High Court was not justified in setting aside of the order of trial Court of dissolution of marriage and allowing petition for restitution of conjugal rights without giving substantiated reasons.
15. We have carefully considered the present case and we find that the respondent had duly pleaded instances of mental cruelty which he proved in evidence and documents. The allegations in the divorce petition, the deposition of witnesses make it abundantly clear that the allegation of cruelty is made out which amounts to mental cruelty in the present case. The trial Court has passed the decree after examining all the evidence and material available on record and the court below has rightly held that the respondent/husband has made out a case for dissolution of marriage under the provisions of Section 13 (1)(i-a) of the Act on the ground of mental cruelty and desertion. The court has rightly taken into consideration the provisions of Section 25 of the Act and awarded maintenance of Rs. 4000/- per month from the date of decree till the appellant enters into re-marriage and held that the appellant will be at liberty to meet her son at any time without there being any restriction in that regard.
16. Thus, considering the aforesaid findings of the trial Court, we do not find any illegality and infirmity in the impugned judgment and decree. Accordingly, the appeal is dismissed. No order as to costs.
(RAVI SHANKAR JHA) (VIJAY KUMAR SHUKLA)
JUDGE JUDGE
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