Uttarakhand High Court
Devendra Kumar vs Smt Manita on 13 July, 2017
Equivalent citations: AIR 2018 (NOC) 28 (UTR.)
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 118 of 2015
Devendra Kumar ......Appellant
Versus
Smt. Manita ...... Respondent.
Present:
Mrs. Soniya Chawla, Advocate for the appellant.
Mr. S.K. Shandilya, Advocate for the respondent.
Reserved Judgment
JUDGMENT
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Dated: 13th July, 2017 Per Hon'ble Sharad Kumar Sharma, J.
While questioning the veracity of the judgment dated 7th October, 2015, passed by the Additional Judge, Family Court, Roorkee, District Haridwar, in Suit No. 32 of 2013. The appellant before this Court has filed the instant appeal on the ground that there has been a gross miscarriage of justice for the reasons that the Court below has not applied its judicious mind while considering the facts and evidence on record.
The learned counsel for the appellant further submitted that it is the duty of the wife to perform her matrimonial obligations. As there was a failure on her part as the respondent wife has deserted the plaintiff/appellant without any rhyme and reason it will amounts to be cruelty within the ambit of Section 13 of the Hindu Marriage Act.
It was submitted that when a wife restrains a husband from permitting him to meet his daughter, thereby, creating 2 an impediment in the emotional and sentimental relationship of daughter and father, it partakes the shape of a cruelty.
The counsel for the appellant submitted that looking to the ever growing age of the parties to the family feud, to has to be settled so that he may re-marry. The appellant happens to be the only son of his aged parents and since the defendant respondent had failed to fulfil her matrimonial obligations and to obey the decree of restitution of conjugal rights, his suit for dissolution of marriage ought to be decreed.
To give a persuasive blend to the pleadings, it is the case of the appellant, apart from the grounds referred above, that his marriage was soleminised on 9th February, 2001 and since then her attitude and conduct with the family members was not very conducive and she started harassing and used to quarrel on very trifle issues. It was also pleaded by the husband before the Court below that with the passage of time, the husband has witnessed that certain persons of doubtful character started meeting respondent, whom he cannot recognize because he was not aware of them.
It is the case of the appellant that on raising the objection pertaining to the persons visiting her, the wife said that the appellant should mind his own business as it is her personal affair, and the people who come to meet her are the people who are acquainted to her.
After giving the said excuse, according to the husband, she used to go with those persons in the adjoining room and enjoy their gathering. What was going on inside the room with those known persons is not known to him. Hence, 3 much cannot be said as to what level of relationship the wife was catering with those persons.
Once husband leads an allegation against wife, being very close to friends of having opposite sex, this is a situation which deals with reduction of affection and trust and the same has been diverted to others by a spouse amounts to alienation of affection. The Apex Court deals this term of actions vis-à-vis cruelty.
The Hon'ble Apex Court in the case of Pinakin Mahipatray Rawal Vs. State of Gujrat reported in (2013) 10 SCC 48 has held in paragraph 12, 13, 15 and 17 as under :-
"ALIENATION OF AFFECTION
12. We are not prepared to say that there was any willful or malicious interference by A-2 in the marital relationship between A-1 and the deceased. A- 2, it has not been proved, had in any way caused any kind of mental harassment by maintaining any relationship with A-1 so as to cause any emotional distress on the deceased. No evidence had been adduced or proved to show that A-2 had alienated A- 1, the husband from the deceased. Further, no evidence had been adduced to show that due to the wrongful conduct of A-2, the deceased had lost companionship, affection, love, sexual relationship. No evidence has been adduced to show that there has been any attempt on the part of A-2 to disrupt the marital relationship between A-1 and the deceased.
13. Alienation of affection by a stranger, if proved, is an intentional tort i.e. interference in the marital relationship with intent to alienate one spouse from the other. Alienation of affection is known as "Heart Balm" action. Anglo-Saxon common law on alienation of affection has not much roots in this country, the law is still in its nascent stage. Anglo- Saxon based action against third parties involving tortuous interference with the marital relationship was mainly compensatory in nature which was earlier available to the husband, but, of late, a wife could also lay such a claim complaining of alienation of affection.4
The object is to preserve marital harmony by deterring wrongful interference, thereby to save the institution of marriage. Both the spouses have a valuable interest in the married relationship, including its intimacy, companionship, support, duties, affection, welfare of children etc.
15. We are, however, of the view that for a successful prosecution of such an action for alienation of affection, the loss of marital relationship, companionship, assistance, loss of consortium, etc. as such may not be sufficient, but there must be clear evidence to show active participation, initiation or encouragement on the part of a third party that he/she must have played a substantial part in inducing or causing one spouse's loss of other spouse's affection. Mere acts, association, liking as such do not become tortuous. Few countries and several States in the United States of America have passed legislation against bringing in an action for alienation of affection, due to various reasons, including the difficulties experienced in Assessing the monetary damages and few States have also abolished "criminal conversation" action as well.
17. Action for alienation of affection lies for all improper intrusions or assaults on the marriage relationship by another, whether or not associated with "extramarital sex", his or her continued overtures or sexual liaisons can be construed as something akin to an assumption of risk that his/her conduct will injure the marriage and give rise to an action. But all the same, a person is not liable for alienation of affection for merely becoming a passive object of affection. The liability arises only if there is any active participation, initiation or encouragement on the part of the Defendant. Acts which lead to the loss of affection must be wrongful, intentional, calculated to entice the affection of one spouse away from the other, in order to support a cause of action for alienation of affection. For proving a claim for alienation of affection it is not necessary for a party to prove an adulterous relationship."5
The Hon'ble Apex Court in the case of Girdhar Shandar Tawade Vs. State of Maharashtra reported in (2002) 5 SCC 177 has held in paragraph 3 as under :-
"3. The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures : Whereas explanation (a) involves three specific situations viz.,
(i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of Section 498(A)."
The Hon'ble Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511 has held in paragraph 99, 100 and 101 as under :-
"99. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not 6 remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior 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 behavior 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.7
(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.
(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 behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(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) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(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 8 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."
However, in the case at hand, out of the wedlock and relationship of appellant and the respondent wife, a daughter Riya was born who, at the time of institution of Section 13 proceedings by the husband, has attained the age of 11 years and was residing with the mother.
It was also a case of the appellant that whenever the brother of the respondent used to visit, she used to raise demand of money, however, for some time, their demand was being satisfied but, later on, the appellant contends that he refused to submit to the demand of money as raised by the brother of the respondent wife. The family of the appellant constituted of his father and he himself as his mother was predeceased. Besides the above allegations, there were various other allegations inter se between the husband and the wife.
The appellant also submitted that whenever he used to go out of home for his official work, his wife used to move around at places alongwith her friends. It was on 11th May, 2006, when the plaintiff appellant and his father were out of home for some personal work and when they returned, they found that the respondent wife was not there in home and she after collecting a cash of Rs.22,000/-, ornaments and other valuables and after taking her daughter Riya has left the home.
It is the case of the appellant that on return, he tried to inquire about the whereabouts of the respondent, the neighbourer informed, that the brother of the respondent 9 had visited to his place, in their absence and she has left the home with her daughter alongwith him.
On the next day, i.e. 12th May, 2006, the appellant contended that he alongwith his father went to Chutmalpur to bring back his wife but she declined to come back and join the husband to discharge her matrimonial obligations. She extended an excuse that she will join back after 10 days, but, even after 10 days, she has not returned, then, according to the husband, he yet again on 21st May, 2006, visited the in- laws to take her back, but it was all futile.
On the other hand, according to husband, the attitude of the respondent was so harsh, she even lodged a Criminal Case, being Criminal Case No. 980 of 2006 at Fatahpur Police Station, in which, final report has been submitted and offence was not established, which in itself shows that the criminal allegation since has not been proved, and there has been a public humiliation, this in itself amount to be mental cruelty sufficient to award divorce decree.
When the two efforts to bring her back on 12th May, 2006, and 21st May, 2006, and also because of the fact that in criminal case, a final report has been submitted. The appellant had also instituted the proceedings under Section 9 of the Hindu Marriage Act on 24th May, 2006, to bring back the respondent which was decreed in favour of the husband on 16th June, 2007, but still, she has not returned. It was because of these reasons, the husband, in his plaint, submitted that he has got no option except to institute the proceedings under Section 13, seeking dissolution of marriage before the Court below, and it was registered as a Case No. 32 of 2013. Notices were issued to the respondent. She submitted her written statement and denied the plaint 10 allegation except the pleading with regard to other allied proceedings as decided by the Courts below.
She contended that the story as developed by the husband that she deserted on 11th May, 2006, is not correct, rather, she stated that on the said day she was thrown out by the family members of the appellant, due to which, she was forced to lodge criminal proceedings before the Police.
On exchange of pleadings, the learned Trial Court framed the following issues :-
"1. D;k izfrokfnuh }kjk oknh ds lkFk dwzjrkiwoZd O;ogkj fd;k x;k vkSj izfrokfnuh }kjk oknh ds fo#) >wBh fjiksVZ ntZ djkbZ xbZ \ ;fn gka rks izHkko A 2- vuqrks"k \"
The learned Family Court, by the impugned judgment dated 7th October, 2015, has dismissed the Section 13 proceedings and, thereby, this is the First Appeal under Section 19 filed by the husband against the said judgment.
What is the relevant at this juncture for this Court to consider is that in the proceedings under Section 13 of the Act which intends to sever relationship between the husband and wife under the Hindu Marriage Act, hence it has not to be resorted to in a routine fashion.
When a party to the dispute raises the allegation of desertion or mental cruelty, the onus to prove the same is on him or her who pleads grounds for divorce given under Section 13 of the Act. To get a decree as prayed for is to be discharged by the party to the dispute who seeks a relief. Because, in the absence of there being any effort made to establish before the Court, beyond doubt that the pleadings raised for dissolution are such and in terms of Section 13. So the evidence has to be adduced by the parties, no relief of dissolution can be granted. In the case, at hand, though 11 husband might have succeeded in criminal proceedings resulting into filing of the final report, though, he might have succeeded in Section 9 proceedings, wherein, he has obtained decree for restitution of conjugal rights, the recourse under those two proceedings are independent and will have no bearing on the proceedings under Section 13, which is to be decided independently and that too only when the parties to proceeding under Section 13 are able to substantiate that there exists the ingredients of Section 13 to dissolve a marriage. Section 9 will not have any interplay over the proceedings under Section 13. At the most, if some lady accuses the husband as a consequence of the judgment under Section 9, the law itself provides the proceedings for enforcement of the said decree. The decree of Section 9, in itself, cannot be the basis for grant and denial of Section 13. Because it has been experienced that the parties to the dispute adopt the recourse of Section 9 as to be the platform for the purpose of filing Section 13.
The more practical importance, however, of this relief by way of decree for restitution of conjugal rights is that it affords a ground for divorce to either party under Section 13 (1A) which lays down that either party to a marriage, whether solemnized before or after the commencement of the Act, may obtain a decree of divorce on the ground that there has been no restitution of conjugal rights between them for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceedings to which they were parties.
In the case at hand, since, the husband who was a decree holder under Section 9 has not availed the recourse 12 to enforce the decree of Section 9, and has filed Section 13 for dissolution of marriage, it goes without saying that Section 9 was a devise for substantiating ground for Section 13.
As already stated above, a party to the dispute has to establish his case by producing unflinching evidence in support of his pleadings. The pleadings, as submitted by the husband in his plaint pertaining to the cruelty, misbehavior, character assassination and desertion has not been established and it can be said that rather no efforts have been made by the husband to establish the pleadings raised by him in the plaint, because according to the judgment and the records of the Court below, he has produced himself as PW1. Further to substantiate the pleading, he has produced PW2, who is Aashit Ghosh, friend of the appellant. On perusal of the statement as recorded by PW2, it could be safely said that he is not the witness of the incident, the narration of which finds place in the plaint. Thus, granting a decree of divorce, merely on the basis of the statements of PW1 and PW2, who have not supported the version of the plaint, is not judiciously possible.
Otherwise also, the set of allegations which are levelled and, more particularly, when the husband make a character assassination of a family of wife, his wife, it is very easy to allege against the character of a lady but then simultaneously he should own the responsibility to establish the same, as consequently, it would tarnish the social image of a lady.
Having not done so, this Court feels that merely on the hearsay evidence, there has been an utter failure on the part of the plaintiff to establish his pleadings by supporting evidence, there was alienation of affection and cruelty and, until and unless, he succeeds in establishing the allegation in 13 the plaint by the evidence, he cannot get decree of divorce based on non substantial claim.
The Hon'ble Apex Court in the case of Jagdish Singh Vs. Madhuri Devi reported in (2008) 10 SCC 497 has held in paragraph 28 and 37 as under :-
"28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well- established principles of law or unreasonable.
37. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has 'virtually' reached a conclusion without recording reasons in support of such conclusion. When the Court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial Court or conclusions arrived at were not in consonance with law."
Another remarkable feature is that according to the husband himself, he was residing with his father and his mother was pre-deceased. Atleast, the father would have 14 been the best evidence about the happenings in the home in relation to the alleged atrocities and also about the subsequent visit of male friends of the wife and also with regard to the allegation that friends of the wife occasionally used to visit to home, and she used to spend time with them in the adjoining room. But the catastrophe of the pleading and evidence is that the plaintiff has not produced his father in the witness box to support the allegations and to establish what has been happening in the home.
In the light of the above, this Court feels that plaintiff has failed to discharge his burden of proof to establish his case and to bring the same within the purview of Section 13 of the Hindu Marriage Act and, as such, this Court feels that absolutely a vague and frivolous allegations have been levelled by the husband for the purpose of getting the decree of divorce which is not under law.
Hence the appeal fails and the same is dismissed and the judgment and decree dated 07.10.2015, passed by the Additional Judge, Family Court Roorkee, District Haridwar dismissing under Section 13 of the appellant is affirmed.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 13.07.2017 13.07.2017 Shiv