Bombay High Court
Kavita Rajesh Naik (Rathod) vs Rajesh Wamanrao Naik (Rathod) on 23 June, 2006
Equivalent citations: 2006(5)BOMCR442
Author: V.R Kingaonkar
Bench: A.P Deshpande, V.R Kingaonkar
JUDGMENT Kingaonkar V.R., J.
1. Aggrieved by dismissal of petition for divorce, original petitioner No. 1 wife has preferred this appeal.
2. Appellant No. 1 Smt. Kavita and respondent-Rajesh were married on 22nd February, 1994 at Aurangabad in accordance with Hindu rites and customs. Then Rajesh used to reside at Yewatmal, a District place, along with his grandparents, two brothers and two sisters. His parents were residing at village Tiwasa, which is at a distance about 20/25 K.Ms, from Yewatmal. After the marriage, appellant Smt. Kavita resided with Rajesh at Yevatmal for some period of about a couple of years. Out of the wedlock, the couple was blissed with a son-appellant No. 2 Tejas somewhere in 1996. The, spouses could not pull on well with each other and fell apart after 3/4 years from birth of the son. Since the time of matrimonial discord Smt. Kavita is residing with her parents at Aurangabad along with her minor son.
3. Briefly stated, case of the appellant No. 1 Smt. Kavita is that she was ill-treated by the husband-Rajesh in the matrimonial house. He used to abuse her in filthy language. He used to insult her in presence of the relatives and friends. He used to suspect her character and did not allow her to go out of the residential premises. She was kept in his house as if she was in a cage. Her life was unsecured. She came to know that he was having love affair with a girl by name Bina Gaikwad. At a times, the respondent-Rajesh used to take said Bina in his bed room and used to latch its door from inside. As and when she used to ask him about such conduct, he abused and assaulted her. He told her that he had relationship with said Bina Gaikwad which he would not give up. Though she continued to live with him under stress and the son was born yet her ill-treatment was continued and on number of occasion she was assaulted as well as driven out from his house. He never provided any financial help to her. Eventually, she came to reside with her parents at Aurangabad, he never cared for herself and the son and never came to Aurangabad so as to fetch them respondent-husband is unwilling to cohabit with her. Consequently, she filed the divorce petition.
4. The respondent-husband resisted the petition by filing his written statement (Ex-hibit-4). He denied truth into all the material allegations made by the petitioner wife. He denied that she was ill-treated, insulted and neglected by him. He further denied that he had love affair with one Bina Gaikwad. According to him, after the marriage, the petitioner wife told him that he shall live separately from his parents. She frequently used to leave his company and used to go to her parents house at Aurangabad. She desired that he shall reside with her at Aurangabad. Though he is a graduate yet he is unemployed. He refused to live with her at Aurangabad and hence she was annoyed. In fact, she has deserted him and left his house, without any reason or rythem. She is a graduate and is doing private service as a teacher. Her father is retired officer and is earning pension of Rs. 10,000/- per month. She is engaged in conducting tuition classes for MPSC and is also doing private service. She is earning amount of Rs. 400/- per month. He is willing to maintain her along with the son, but she is not ready to join his company at Yewatmal or Tiwasa. He denied that he deserted the petitioner and that she was treated with cruelty in the matrimonial home. On these premises, he sought dismissal of the petition.
5. By filing separate petition under Section 125 of the Code of Criminal Procedure, the wife sought maintenance allowance for herself and the son. The averment and the counter allegations are of identical nature. So, it is not necessary to reiterate them.
6. The parties went to trial over issues framed at Exhibit-11 by the learned Judge, Family Court at Aurangabad. They adduced oral evidence in support of their rival contentions. On consideration of the evidence of the parties, the learned Judge (Ms. Vimal Lohiya) came to the conclusion that the petitioner failed to prove the alleged "cruelty" and also the allegations regarding illicit relations of the respondent - Rajesh with one Bina Gaikwad. The learned trial Judge further held that the petitioner-Smt. Kavita could not prove that she has been deserted by the husband for more than two years prior to presentation of the petition. Hence, her petition for divorce came to be dismissed. The learned trial Judge held that the respondent - Rajesh has neglected to maintain the son and hence he was directed to pay maintenance amount at the rate of Rs. 500/- (Rs. Five Hundred) per month to him. The learned trial Judge held that the wife could not establish the allegations that the husband-Rajesh refused and neglected to maintain her. Therefore, her claim for maintenance allowance came to be rejected.
7. In this appeal, the following points arise for determination.
i) Whether it is proved that the respondent-husband subjected the appellant No. 1-wife "cruelty" and hence she is entitled to decree for dissolution of marriage?
ii) Whether it is proved that the respondent-husband has deserted the wife for a continuous period of two years prior to filing of the petition?
iii) Whether the marriage has irretrievably broken ? If yes, can this Court while exercising appellate jurisdiction, grant decree for dissolution of marriage?
For the reasons recorded hereinafter, our findings on these points are thus:
i) No.
ii) No.
iii) "Yes", to the extent of first part and "No" to the extent of second part.
8. Before we proceed to scrutinise the evidence on record, it may be mentioned that the divorce petition is founded mainly on the ground of alleged "cruelty" though another plea of desertion is incidentally pressed into service. The petition is not at all pressed into service on the ground of so called adultery of the husband-Rajesh, namely, his illicit relations with one Bina Gaikwad. The pleadings of the petitioner would show that she did not expressly adopt plea of so called adultery and the allegations regarding relations with said Bina Gaikwad are put forth with a view to make out case pertaining to alleged cruelty meted out to her. No where it is stated in the petition that he had extra marital sexual relations with said Bina Gaikwad. Nor said Bina Gaikwad is joined as a party to the petition. It is well settled that in absence of person against whom such kind of allegations are made, finding cannot be rendered in the context of adultery. We cannot condemn said Bina Gaikwad or Meena Gaikwad, who so ever she may be, without hearing her say in the matter. Needless to say, the merits of the petition will have to be examined in the context of the ground of "cruelty" and "desertion" as envisaged under the provisions of the Hindu Marriage Act, 1955. 8-A. Sub-clauses (i-a) and (i-b) of Clause (1) of Section 13 of the Hindu Marriage Act, 1955, read as under:
Section 13(1) Any marriage solemnized, whether before or after the commencement of this act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) xxxxxxxxxxxxxxxxxx (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) xxxxxxxxxxx
(iii) xxxxxxxxxx
(iv) xxxxxxxxxxx
(v) xxxxxxxxxxx
(vi) xxxxxxxxxx
(vii) xxxxxxxxxx
9. At the outset, it may be mentioned that there is practically oath against oath in so far as the allegations about cruelty are concerned. There is no documentary evidence on record. The fact that the parties lived together till birth of the male child is un-controverted. It is undisputed that the petitioner-wife was born and brought up at Aurangabad where her father was serving. She comes from a middle class family of urban area, whereas the respondent hails from a small village and comes from family of agriculturist. There is remarkable difference in the family background and surroundings of both of them.
10. Now, we shall proceed to appreciate evidence of the parties. In support of her claim, the petitioner entered the witness box as P.W. 1. The version of P.W. 1 Smt. Kavita reveals that the husband used to express doubt regarding her character and used to insult her in presence of other persons. She states that he had confined her in his house. She further states that he used to inform her that he had love affairs with one Bina Gaikwad since before their marriage. Said Bina Gaikwad resides near their maternal house. He used to bring her to their house and used to take her in the bed room and then she had to stay outside of the bed room. She states that she tried to restrain him but he was being supported by his relatives. He used to beat her in presence of said Bina Gaikwad.
11. It is worthy to mention here that the petitioner did not give particulars about the incidents of assault. Her pleadings do not show that she had tried to restrain the husband when he used to take said Bina Gaikwad to the bed room and that the husband was supported by his relatives. The details about such incidents are not stated in the pleadings. The pleadings suffer from vagueness in the context of the aforesaid incidents of cruelty. It is rather difficult to believe that in presence of grant parents the extra marital affair was being continued and they supported the respondent-husband in doing so. Moreover, as stated earlier, such allegations cannot be examined in the absence of said Bina Gaikwad and she has not been joined as a party to the petition although it is the case of the petitioner that she is inhabitant of the same locality.
12. The version of P.W. Smt. Kavita is that when she was pregnant then the husband used to always tell her that he shall desert her if she would deliver a daughter. He had also denied paternity of the child after birth of the son. Her parents convinced him about it and then he agreed to accept his son as his own. This part of her statement is totally improvised. There is no whisper about it in her pleadings. Obviously, she tried to make improvement with intention to obtain divorce. She further states that she was at Aurangabad with her parents when she delivered the male child and none of the relatives of the husband came to see her. She had gone to his house on her own accord after birth of the child but there was no change in his behaviour. This part of her statement is contradicted by P.W. 2 Radhabai, who is her mother. P.W. 2 Smt. Radhabai states that after birth of the child, within a period of about one month, the re-spondent-Rajesh took back the petitioner and subsequently, as there was quarrel between them, after one month he reached her back at Aurangabad. There is significant contradiction in the version of both these witnesses regarding the way in which petitioner Smt. Kavita joined company of the husband after birth of the son. The version of P.W. Smt. Kavita is the effect that after about two months of her joining company of the husband, after birth of the male child, her father-in-law quarrelled with her saying that she did not attend the domestic work and he asked her to leave the matrimonial home. Her parents visited her matrimonial home to convince her father-in-law and urged the husband and his relatives to give good treatment to her but they were not ready to listen any word of advice. This part of her statement is also un-supported by pleadings. Her father did not enter the witness box to shed any light on such attempt made by him and the alleged quarrel picked up by the father-in-law of the petitioner-Smt. Kavita.
13. The version of P.W. 1 Smt. Kavita is that since about two (2) and (l/a) half years she was living separately and no efforts were made by the husband and her relatives to take her back. She states that whenever she tried to contact him on phone, he had abused her. Again, the pleadings are absent in the context of her attempt to contact him on phone and his abusive response to her. The petition does not disclose specific instances about the alleged cruelty. The cross-examination of P.W. Smt. Kavita reveals that she was in the first year B. A. when she was married and now she is a graduate. She admits that she was in the house of her husband when she appeared for B.A. examination. She never made complaint in writing regarding his relations with Bina Gaikwad. She categorically states that she is not ready to join his company although he is ready to take her with him. In other words, she is unwilling to go with him though he is ready and willing to take her to his house.
14. The testimony of P.W. 2 Radhabai has not advanced the case of the petitioner, even an inch ahead. She states that the respondent-Rajesh used to call Smt. Kavita as "prostitute". However, P.W. 1 Smt. Kavita did not say so in her evidence. It is stated by P.W. Radhabai that Rajesh had come to her house and abused Smt. Kavita in filthy language and then her son had restrained him. No such incident is stated by P.W. Smt. Kavita. That apart, such statement of P.W. 2 Radhabai suffers from vagueness. She states that she had given money to the respondent-Rajesh on several occasions. This part of her statement is against vague and unsupported by pleadings of the petitioner as well as version of the petitioner. She states that if the petitioner is ready to join company of the husband then she had no objection. As a matter of fact, if conduct of the respondent-Rajesh could be so cruel, even to call petitioner as "prostitute" her mother would not have expressed her no objection for their reunion.
15. There is solitary versions of D.W. 1 Rajesh in support of his defence. His statement purports to show that the wife insisted that he shall live with her at Aurangabad and assured that her father has arranged for his employment. He states that he and the wife happily lived about couple of years and thereafter the quarrels ensued because she used to frequently visit Aurangabad. She came to Aurangabad prior to about 2 years i.e. somewhere in 2002 to undertake training course for B.Ed. He states that Bina Gaikwad is daughter of his paternal aunt. He admits that he was not employed at the time of his marriage and used to cultivate the agricultural land owned by his family. He admits that there was a quarrel because he was not employed. He denied that he used to demand divorce from her since he wanted to perform marriage with Bina Gaikwad. This suggestion is unfounded in as much as inspite of various attempts in the trial Court as well as during course of hearing of this appeal, he refused to give divorce to the petitioner-wife.
16. learned Counsel for the appellants Smt. Mahajan strenuously argued that conduct of the husband was such that the wife was unable to feel secured in his house and that the mental agony caused to her should be regarded as "cruelty". It is argued by learned Counsel Smt. Mahajan that the wife would not have continued to reside with her parents if the husband had cared for her and the maternal home was a secured place for her to reside with him. The learned Counsel further urged to take pragmatic view of the matter, having regard to inability of the wife to spell out details of the "cruelty" which is mostly a kind of mental cruelty meted out to her. It is argued that having regard to social background of the petitioner and the fact that she is an educated woman belonging to cultured family, natured with certain notions about her self dignity, it is but natural that she was unable to tolerate her insults as well illicit relations between the husband and Anr. woman. Were not impressed with the argument advanced by the learned Counsel. As stated earlier, though the petition is laced with suggestive extra marital relation between the respondent-Rajesh and said Bina Gaikwad, yet there is absolutely no iota of avernment about their sexual intercourse. 1 The plea is raised in half-hazardous manner and cannot be countenanced in absence of appropriate pleadings and proof.
17. Nobody can deny that the "cruelty" would largely depend upon cultural and, man values of the spouses, their economic and social status, the nature of the treatment meted out to each other and their behaviour as life partners. We are not supposed to deal with an ideal husband and wife but with the peculiar circumstances which are projected in the context of the husband and wife who are before us. Even that being so, it is difficult to hold that the petitioner has been able to prove the allegations of cruelty. It appears that the petitioner-Smt. Kavita was brought up in the urban area, at house of a; middle class officer and had never experienced the ground realities of the life which exists in the rural areas and particularly in the family of agriculturist. It is more probable that she was unable to put up with the unemployed husband, who was dependant only on the agricultural income. It is more probable that she wanted him to reside separately at Aurangabad and, therefore, for some period he had come with her in order to seek employment and they had resided at Aurangabad. She has made a: categorical statement in the petition that she is residing with her parents since about 2002 i.e. couple of years before filling of the petition. Had there been any substance in the allegations of his extra marital relations with said Bina Gaikwad, then from 1994 till 2002 she would never have continued to remain in his company.
18. The version of P.W. Smt. Kavita reveals that she could not establish the allegation that she has been deserted for more than two years prior to filing of the petition. The petition was filed on 10-2-2004, whereas in her deposition, which was recorded on 24-82004, she sated that since 2 and half years they are living separately from each other. It is explicit that there was no continuous desertion for more than two years prior to filing of the petition i.e. before 10-2-2004, nor particulars about the date of desertion have been given in the petition itself. The petitioner admits that she continued her education while residing with husband. The conduct of the husband, in allowing her to continue the educational career, reveals that he desired to continued matrimonial tie and did not wish to desert her. We are of the opinion that the learned trial Court has properly appreciated the evidence on record. We do not find any substantial error committed by the trial Court while reaching the conclusion that the petitioner failed to prove the alleged cruelty as well as the desertion, in accordance with requirement of the Sub-clauses (i-a) and (i-b) of Clause (1) of Section 13 of the Hindu Marriage Act, 1955.
19. learned Counsel Smt. Mahajan sought to rely upon certain observations in case of Pragati Varghese v. Cyril George Varghese 1997(4) Bom.C.R. 551 : 1997(3) Mh.L.J. 602. It is observed that the denial of right of divorce constitutes violation of right to live under Article 21 of the Constitution. These observations are made in relation to Section 10 of Divorce Act (4 of 1869), while examining: the particular provision on touch stone of . Articles 14, 15 and 21 of the Constitution of India. Such observations cannot be read in isolation and are of no assistance, whatso- I ever, to the appellants. The learned Counsel further relied upon case of A. Jayachandra v. Aneel Kaur 2005(Supp.) Bom.C.R.I (S.C.)872 : A.I.R. 2005 S.C.W. 163. The Apex I Court has observed that the expression "cruelty" has been used in relation to human] conduct or human behaviour. Relevant observations are as follows:
The expression 'cruelty' has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or .mental, or as to give rise to a reasonable apprehension of such a danger. The question' of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, I their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which fails within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/ or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an 1 apprehension in the mind of the other spouse, 1 about his or her mental welfare then this conduct amounts to cruelty. In deviate human t relationship like matrimony, one has to see ,. the probabilities of the case.
20. There cannot be duality of opinion that the expression "cruelty" would include mental harassment, torture and any conduct . which would cause an apprehension to the life of the wife in the matrimonial home, as a result of behaviour of the husband. All said and done, finding on the question of cruelty . cannot be rendered without there being appropriate pleadings and required quantum , of proof. The petitioner did not give specific instances regarding inhuman conduct of the, husband. Indeed, he did not object for her further education and she completed graduation in Arts while in the matrimonial house. It is pleaded by the petitioner that all ornaments which were given by her parents were . taken away by the respondent-husband. Not . only that she failed to state the nature of ornaments and the period with reference to date and time of alleged incident regarding taking away of her ornaments by him but there is no whisper in her deposition regarding such incident. It appears that such allegations have been made without any substratum and just to carve out some incident regarding the ground of cruelty. It cannot be ignored that the statutory requirement of proof regarding alleged cruelty and necessity of pleading with required particulars cannot be done away with, though some flexibility in this behalf is available in so far as matrimonial cases are concerned.
21. The learned Counsel for the appellants invited our attention to the fact that there was an attempt in the trial Court for reconciliation but it fizzled out. The report of Marriage Counselor is to the effect that the marriage has broken. Indeed, we also tried to make conciliation but it was of no avail. We are clearly of the opinion that the marriage has broken irretrievably and the spouses have reached a point of no return. It is in these 'circumstances that learned Counsel Smt. Mahajan urged that when there are no hopes of any reunion and when the marriage has broken down irretrievably then, this Court should grant decree for dissolution of the marriage.
22. True it is that in case of A. Jaychnndra v. Aneel Kaur (supra) the Apex Court held that with a view to do complete justice and shorten agony of parties the dissolution of in t marriage was essential. It cannot be over looked, however, that the Apex Court granted um decree or dissolution of the marriage in the exercise of its extra ordinary powers. As an Appellate Court we are afraid, such power is not available with use. In the context, it would lea not be out of place to mention here that very cm recently in case of Naveen Kohli v. Neetu Kohli the Apex Court has recommended ha that the Parliament should consider amendment in the Hindu Marriage Act, 1955, to ex1 incorporate irretrievable break down of the 25 marriage as a ground for the grant of divorce. Taking survey of catena of case law on the to several aspects related to question of "cruelty" as a ground for divorce, the Apex Court or granted decree for divorce when it was found to be in the interest of both the parties and refusal thereof would be disastrous to them. The Apex Court, however, clearly held that each case has to be decided on its own its. The Apex Court has observed that once K the parties have separated and in the separation have continued for sufficient time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down.
23. On careful reading of the judgment in Naveen Kohli V. Neelu Kohli (supra), it is explicit that the dissolution of marriage on the ground of its irretrievable broken condition is considered by the Apex Court in its extra ordinary jurisdiction and in para 91 the following observations are made:
Before we part with this case, on consideration) of the totality of facts, this Court would like to recommend the Union of India to seriously. consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a 'ground for the grant of divorce. A copy this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps.
24. We are of the opinion that the marriage has been irretrievably broken in the present case but for want of the amendment in the Hindu Marriage Act, 1955 to included such ground for the grant 'of divorce, we are unable to exercise the appellate 'powers in favour of the petitioners-Smt. Kavita. We are reluctantly, required, therefore, to dismiss the appeal. Still, however, we find that the learned trial Judge was harsh in imposing costs on the petitioner-wife. When both the spouses have contributed to the break down of the marriage, then the woman, though she has failed to prove the allegations of cruelty, cannot be mulcted with the costs. To this extent, the impugned order is unsustainable.
25. In the result, we dismiss the appeal and modify the impugned order pertaining to awarding of the costs and direct dismissal of the petition as well as the appeal with no order as to costs.