Uttarakhand High Court
Dharamveer Singh vs Smt. Lajwanti Devi on 24 August, 2020
Equivalent citations: AIR 2020 UTTARAKHAND 193, AIRONLINE 2020 UTR 299
Author: Alok Kumar Verma
Bench: Sudhanshu Dhulia, Alok Kumar Verma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No.63 of 2014
Dharamveer Singh ....Appellant
Vs.
Smt. Lajwanti Devi ......Respondent
Present :
Mr. Pooran Singh Rawat, the learned counsel for the appellant.-
Mr. Siddhartha Sah, the learned counsel for the respondent.
Reserved on:06.08.2020
Delivered on :24.08.2020
Coram : Hon'ble Sudhanshu Dhulia, J.
Hon'ble Alok Kumar Verma, J.
Per : Hon'ble Alok Kumar Verma, J.
This appeal is filed by the appellant (husband) against the judgment and decree dated 29.05.2014 passed by the Judge, Family Court, Pauri Garhwal in Matrimonial Case No.50 of 2011 Dharamveer Singh vs. Smt. Lajwanti Devi, by which the learned Judge, Family Court declined to grant decree of divorce on the ground of cruelty.
2. The brief facts of the case which are necessary to notice for deciding the appeal are: -
Admittedly, the appellant got married to the respondent in the month of April, 2008 at Pauri as per the Hindu rites. The appellant 2 was working as Collection Amin at Chaubattakhal, District Pauri Garhwal, whereas the respondent was a house wife. Out of this wedlock, one daughter was borne on 22.06.2009. The daughter is living with the respondent.
3. On 26.04.2011, the appellant filed a petition for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act, 1955') on the ground of 'cruelty'.
4. The appellant, in his petition, pleaded following instances which, according to him, construed cruelty within the meaning of Section 13 (1) (i-a) of the Act, 1955 entitling him to claim dissolution of marriage against the respondent :-
(i) The first ground of cruelty was related to his wife's behaviour after the second day of marriage. It was alleged that her behaviour was abnormal. In the embarrassing situation, the appellant gave a phone call to the family members of her parental house. Her two brothers came and took the respondent with them. She did not turn up for another three months. During that period, the appellant visited her parental house but her behaviour remained unsound. The appellant told her family members that he wanted to take some medical advice but they told that they were treating her in a private hospital at Saharanpur since long back.
(ii) The second ground of cruelty was that after three months of their marriage, he went to her parental house and on his efforts, the respondent came to the village of the appellant in the month of August, 2008 but again her behaviour became unsound. She used to misbehave with mother and other family members of the appellant. Being 3 aggrieved from behaviour of the respondent, and since the respondent had spoiled the family atmosphere, the respondent was left at her parental house in the month of November, 2008.
(iii) The third ground of cruelty was that after November, 2008, the appellant regularly visited her parental house and requested her to live with him at his work place but the behaviour of the respondent became dangerous day by day. Sometimes, she was not even ready to talk with the appellant for days together. Sometimes, she told that she had a 40 rooms house at Pauri and men like the appellant were her servants in her house. This types of taunts were passed by her. The appellant felt insulted by this behaviour of the respondent. The respondent was not ready to come with the appellant on the ground that his service was in a village. In spite of these, the appellant provided her all facilities at her parental house.
(iv) During the period of the pregnancy of the respondent, the appellant, his father and sister-in-law of the respondent took her to a hospital. The appellant discharged all his duties as a husband. On 22.06.2009, the respondent gave birth to a girl. The naming ceremony (namkaran) of his daughter was done at the parental house of the respondent. All the expenses were incurred by the appellant. During that period, the cruelty of the respondent was still going on. The appellant requested the parents and other family members of the respondent that the appellant wanted to take his daughter and his wife with him. Thereafter, she came to his village Palli in the month of December, 2009, but she again went back to her parental house in the month of December, 2009 4 without informing anyone. During that period her indecent behaviour increased day by day. This was the fourth ground of cruelty.
(v) The fifth ground of cruelty was that the appellant went to her parental house at Pauri and Bhainswara but she always insulted him and misbehaved with him. Being aggrieved from the cruel behaviour of the respondent, the appellant was forced to ask his father, sister-in-law and his brother that the respondent had made his life hell and how he can survive in these circumstances.
(vi) The sixth ground of cruelty was that by the efforts of the appellant and father of the respondent, she came with her daughter to village Palli at the appellant's house in the month of July, 2010 and she remained there only for ten days but during that period she crossed all limits. She raised her hand and assaulted his mother in public. The father of the appellant told him that he could not live in the village in such a situation, therefore, the appellant took the respondent along with his daughter at his work place Chaubattakhal.
(vii) The seventh ground of cruelty was that at the work place of the appellant, she insulted him regularly and threatened him that he should leave her at her parental house otherwise she will ruin his life. The appellant tried to convince her but due to her aggressive and strange behaviour, he was left with no option but to agree to her demand.
(viii) The eight ground of cruelty was that the appellant went to meet her and his daughter at her parental house in Pauri, 5 he found no change in her behaviour and she continued to insult the appellant.
(ix) The ninth ground of cruelty was that in the month of October, 2010, there was marriage of his younger sister.
The appellant and his parents requested the respondent to forget all the past and participate in the marriage ceremony, but, she insulted him and his father on this request and she did not participate in the marriage of the sister of the appellant which resulted great mental agony for the appellant.
5. The learned counsel appearing for the appellant relied upon the judgments of Hon'ble Supreme Court in V. Bhagat vs.Mrs. D. Bhagat, (1994) 1 SCC 337, Manju Kumari Singh @ Smt. Manju vs. Avinash Kumar Singh, (2018) AIR 3629, A. Jayachandra vs. Aneel Kaur, (2005) 2 SCC 22, Dr. (Mrs.) Malathi Ravi vs. Dr. B. V. Ravi M.D., (2014) 7 SCC 640, Praveen Mehta vs. Inderjeet Mehta, (2002) 5 SCC 706, K. Srinivas Rao vs. D. A. Deepa, (2013) 5 SCC 226 and the judgment of this High Court passed in Harish Chandra Chilwal vs. Smt. Pushpa, (2008) U.D. 107.
6. The respondent filed her written statement and denied the allegations of the appellant. She stated that she always tried to live with the appellant in love and affection but the appellant lived in the behest of his mother and father and whenever he came on leave, his parents used to provoke him and on such provocation, he demanded Rs.50,000/- and one motorcycle. She was beaten by him on the provocation of his parents. The respondent alleged that the appellant was habitual drinking and playing cards. In the early morning of 15.11.2008, the appellant came in a drunken state and started pressurizing her to call her father and asked him to give Rs.50,000/- and a motorcycle. She was beaten by him and thrown out from the 6 house of the appellant. At that time, she was pregnant. On 22.06.2009, she gave birth to a girl. At the time of birth of the girl, the appellant or any family member of the appellant did not come to the hospital to see her. The naming ceremony (namkaran) took place at her parental house. The appellant did not spend any money in that ceremony. The appellant taunted her that her parents had not given anything at the time of birth of child. Her father and brothers went to leave her at the house of the appellant but the appellant and his father did not behave properly with them. The appellant and his father taunted her for not giving birth to a son. The mother of the appellant locked the toilet and bathroom, therefore, she was forced to go to jungle. As a result, she came to her parental house in the month of December, 2009 along with her daughter. The appellant never came to take her back nor even gave any phone call. Her father, brother and her sister-in-law took her to the house of the appellant in the month of July, 2010, but the appellant misbehaved with them. Being a traditional Indian woman, she tolerated these problems and remained in the house of the appellant. The appellant in his sister Savita's marriage remained drunk for a week and in front of guests he misbehaved with her. She never deserted her husband. The appellant filed the petition for divorce just to harass her and wanted to solemnize his second marriage after divorce her.
7. The trial court framed the following issues on the basis of pleadings of the parties:-
(1) Whether the respondent has treated the
petitioner with cruelty? If so, effect?
(2) Whether the petitioner has treated the
respondent for dowry, as mentioned in the written statement? If so, effect?
(3) Relief?
78. Parties adduced the evidence. The appellant examined himself as PW1, witnesses Naresh Chandra, PW2, Pushkar, PW3, Sandeep, PW4 and Ranveer, PW5. The respondent examined herself as DW1, witnesses Harsh Singh, DW2, Madan Singh, DW3 and Smt. Sushila Devi, DW4.
9. After hearing both the parties, the petition, filed by the appellant against the respondent seeking dissolution of marriage, was dismissed. Hence, this appeal.
10. We have heard learned counsel for the parties through video conferencing and perused the record.
11. The learned counsel for the appellant submitted that the parties have been living separately for ten years and in any case now the marriage between the parties has irretrievably broken down, therefore, the appeal is deserved to be allowed. The learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in K. Srinivas Rao vs. D. A. Deepa, (2013) 5 SCC 226. The learned counsel for the appellant also relied upon the judgment of the Hon'ble Supreme Court in Manju Kumari Singh @ Smt. Manju vs. Avinash Kumar Singh, (2018) AIR 3629, where the Hon'ble Supreme Court exercised its jurisdiction under Article 142 of the Constitution of India and declared dissolution of marriage
12. The word "cruelty" used in Section 13(1)(ia) of the Act, 1955 is not defined under the Act, 1955. Cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence. The question whether any party treated the other party with cruelty is a single question only to be answered after all the facts have been taken into account.
813. In V. Bhagat vs. Mrs. D. Bhagat, (1994) 1 SCC 337, the Hon'ble Supreme Court considered the concept of "mental cruelty" in the context of Section 13 (1) (ia) of the Act, 1955. The Hon'ble Supreme Court observed that it can be defined as conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.
14. In Vinita Saxena Vs. Pankaj Pandit, (2006)3 SCC 778, the Hon'ble Supreme Court observed, "31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
32. The word "cruelty" has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted."
915. Cruelty has to be distinguished from the ordinary wear and tear of family life. However, even mental torture or abnormal behaviour may amount to cruelty in a given case.
16. In Savitri Pandey Vs. Prem Chandra Pandey, (2002) 2 SCC 73, the Hon'ble Supreme Court observed that mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party.
17. In Praveen Mehta vs. Inderjeet Mehta, (2002) 5 SCC 706, the Hon'ble Supreme Court observed that cruelty for the purpose of Section 13 (1) (ia) of the Act, 1955 is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other.
18. In Dr. (Mrs.) Malathi Ravi vs. Dr. B. V. Ravi M.D., (2014) 7 SCC 640, the Hon'ble Supreme Court considered the case of Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511. What amounts to "mental cruelty" was explained by the Hon'ble Supreme Court Samar Ghosh Vs. Jaya Ghosh, (2007)4 SCC 511. Their Lordships enumerated following category of cases which are considered relevant while examining the question as to whether the facts alleged in the matter and proved constitute "mental cruelty". Paragraph 101 of the said judgment is being reproduced below :-
"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.10
(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.11
(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) 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 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."
19. The appellant, in his oral evidence, has narrated in detail, the incidents of alleged cruelty suffered by him. The appellant deposed that since the beginning of marriage i.e. after second day of 12 the marriage, the behaviour of the respondent became abnormal. The family members of her parents informed him that her treatment was going on in a private hospital at Saharanpur since long back but they did not give any importance to the wishes of the appellant. The family members of the respondent took her to their house. The appellant deposed that after three months of his marriage, he went to her parental house at the occasion of her brother's marriage and he told her that she should live in her matrimonial house but she did not return to her matrimonial house. The respondent came to his house in the month of August, 2008, but her behaviour was again disappointment. Due to her rudeness behaviour, the appellant's father left her in her parental house in the month of November, 2008. The respondent gave birth to a girl on 22nd June 2009. The appellant, his father and sister-in-law of the respondent took her to hospital. The appellant went to her parental house at the occasion of the naming ceremony (namkaran) of his daughter. After November, 2008 no cohabitation took place between them. He was deprived of her marital obligations. She always insulted him. She used to misbehave with him and his parents. She taunted him that like the appellant she had several servants at her parental house. The appellant alleged that most of the time, she used to live with her parents as she was not ready to live with him on the ground that his service was village service.
20. The respondent stated that she was residing at her parental house due to her stomach pain and her treatment was going on in various hospitals but no document/proof have been filed by the respondent pertaining to her said treatment.
21. The appellant alleged furthermore that in the month of July, 2010, the respondent had beaten his mother. After this incident, the father of the appellant told him that he could not live in the village in that situation, therefore, he took his wife and his daughter at his 13 work place Chaubattakhal. The respondent admitted this fact in her cross-examination that she went to Chaubattakhal, at the work place of the appellant.
22. The learned counsel for the respondent argued that the appellant did not examine his mother to prove his allegation that in the month of July 2010, the respondent beat his mother, therefore, the appellant had failed to prove this allegation and the trial court is correct to hold that best evidence did not adduce to prove this allegation.
23. In A. Jayachandra Vs. Aneel Kaur, (2005)2 SCC 22, it was held that the concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife.
24. The evidence of the appellant regarding misbehaviour of the respondent with his mother is corroborated with the evidence of witness Pushkar, PW3.
25. The appellant examined witness Pushkar, PW3. The house of this witness was a little away from the appellant's house. Mr. Pushkar, PW3 deposed that in July, 2010, the respondent abused appellant's mother and pushed her. On this, the appellant took her with him to Chaubattakhal.
26. Mr. Ranveer Singh, PW5, father of the appellant, stated in his evidence that after marriage, the respondent came to his house Palli, but, instead of good behaviour she started misbehaved with his son and started insulting him. He was also ill treated by her. He further stated that the respondent came to his village in the month of July, 2010 and beat up his wife. On this information, he went to his village and called his son and told him that in those circumstances, 14 they could not live with the respondent. He told the appellant that he should take her with him to Chaubattakhal. Even there too, she ill treated his son. The respondent Smt. Lajwanti Devi, DW1 admitted this fact that the appellant took her to his work place at Chaubattakhal and stated that she lived there for a week.
27. The allegation regarding ill treatment by the respondent is corroborated with the evidence of Naresh Chandra Sundriyal, PW2. This witness is a shop-keeper. His shop is situated at Chaubattakhal. The appellant was posted at Chaubattakhal as Ameen. This witness stated that in the month of July, 2010, the appellant told him on the phone from his village that his wife was quarrelling and his parents was telling him to take her with him to his work place. The appellant asked him to arrange a room in Chaubattakhal. He further deposed that the appellant reached there with his wife and daughter and since there was no arrangement of room, therefore, he took them to his house. He gave them one room. He stated that the family of the appellant stayed 6-7 days in his house and in those days, he noticed that the wife of the appellant abused the parents of the appellant and her behaviour with the appellant was insulting. He further deposed that once in a night at 10 o' clock, he heard noise from the room of the appellant. He went there and saw that the wife of the appellant was holding the appellant's throat and she was abusing him. She asked this witness to leave the room. This witness stated that whole night there was noise from the appellant's room. On the next day, the appellant sent his wife to her parental house. The respondent admitted this fact that there was a quarrel between them at Chaubattakhal because the room at Chaubattakhal was situated in a secluded place, therefore, she wanted to change that room and that was reason for quarrel.
28. The learned counsel appearing for the appellant submitted that in Harish Chandra Chilwal vs. Smt. Pushpa, (2008) 15 U.D. 107, the relief of divorce was granted on the ground of cruelty and in the instant case, it is proved that in the light of callous conduct and cruel behaviour of the respondent, it is not possible for the appellant to live with the respondent.
29. The allegation of the respondent is that the appellant and his father had harassed her for Rs.50,000/- and one motorcycle and she was beaten by the appellant on the provocation of the parents of the appellant. She stated that the appellant came in drunken state in the early morning of 15.11.2008 and started pressurizing her to tell her father to give Rs.50,000/- with a motorcycle and after that, she was beaten and thrown out from the house. She stated that she was pregnant at that time. She further alleged that the appellant and his family members were unhappy on the birth of her girl child as they wanted a boy. She alleged in her written statement that she gave birth to a daughter on 22.06.2009 but even at the time of her daughter's birth, the appellant or none of his family came to the hospital to see her. Although, the respondent has stated in her examination-in-chief that due to the typographical mistake, it was mentioned in her written statement that at the time of the birth of her daughter, the appellant or his family members did not come to the hospital to see her and deposed that her father-in-law came to the hospital at the time of her daughter's birth but even then the suggestion was given to the appellant on behalf of the respondent in his oral evidence that at the time of the birth of her daughter, the appellant and his father did not come to the hospital. The respondent has also admitted that at the time of the naming ceremony (namkaran) of her daughter, the appellant and his father came to her parental house. Mr. Harsh Singh Negi, DW2 also stated in his examination-in-chief that the appellant and his parents came at the time of the naming ceremony (namkaran) of the respondent's daughter.
1630. It is noticed that if the appellant and his parents wanted Rs.50,000/- and a motorcycle and for this reason they harassed the respondent and she was thrown out from their house and they wanted only son, then there was no reason for the father of the appellant to go to the hospital at the time of the birth of the girl child and then there was no reason for them to go to the parental house of the respondent at the time of the naming ceremony (namkaran) of girl child. All these circumstances nullify the allegations of the respondent that the appellant and his parents used to harass her and due to this reason she was forced to live separately from the appellant, whereas, after appreciation of the evidences, produced by the parties, the case of the appellant is found to be credible that there was sustained unjustifiable conduct and behaviour of the respondent due to which he was forced to seek dissolution of his marriage.
31. The respondent in her deposition stated her willingness to return to the matrimonial house. But, the statement ipso facto is in conflict with her conduct. The appellant stated in his evidence that there was marriage of his younger sister in the month of October, 2010, therefore, he and his father requested her to forget all the past and participate in the marriage ceremony but the respondent insulted him and his father and even she did not participate the marriage of his sister which resulted great mental agony to him. The respondent deposed that she was invited in the marriage of her sister-in-law in the month of October, 2010, but the respondent has not clearly stated that when she went there to participate the marriage ceremony of her sister-in-law. The appellant clearly stated in his cross-examination that he did not see his daughter since the year of 2010. This evidence is unrebutted. Apart from this, the respondent did not state what impelled her to level false allegations which tended to humiliate the appellant. This callous conduct also establishes that she deliberately kept herself away from her husband's company; it amounts to cruelty.
1732. For the above reasons, we hold that the conduct of the respondent amounts to mental cruelty within the meaning of Section 13 (1) (ia) of the Act, 1955 and the appellant is entitled to a decree of divorce dissolving the marriage between the party.
33. The appeal is consequently allowed. The judgment and decree dated 29.05.2014, passed by the Judge, Family Court, Pauri Garhwal in Matrimonial Case No.50 of 2011, Dharamveer Singh Vs. Smt. Lajwanti Devi is set aside. The marriage, solemnized between the parties in the month of April, 2008, hereby stands dissolved. There is no order as to costs.
34. We also make it clear that it is open for the respondent to take appropriate steps for grant of maintenance in accordance with law and in the event an application for alimony is filed the same shall be disposed of by the competent court as far as possible within three months of presentation of the said application in accordance with law.
(Alok Kumar Verma, J.) (Sudhanshu Dhulia, J. )
24.08.2020
JKJ/Sanjay