Gauhati High Court
Dr. Balmukund Agarwal vs Dr.[Mrs] Sunita Agarwal on 3 January, 2012
Author: A. K. Goel
Bench: A. K. Goel
1
THE GAUHATI HIGH COURT AT GUWAHATI
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
Mat. Appeal No.18 of 2008.
Appellant :
Dr. Balmukund Agarwal,
Son of Shri Raghubir Prasad Agarwal,
Resident of Tarun Villa Chalianagar,
P.S. Tinsukia,
District - Tinsukia, Assam,
At present Shankar Netralaya,
Beltola, Guwahati.
By Advocates :
Mr. B. Banerjee.
-versus-
Respondent:
Dr.(Mrs) Sunita Agarwal, Wife of Dr. Balmukund Agarwal, Daughter of Shri Durga Dutt Singhi, Resident of Jail Road, C/o Sunita Dental Clinic, P.O. & P.S. Jorhat, District - Jorhat, Assam.
By Advocates:
Mr. G. N. Sahewalla, Sr. Advocate, Mr. K. Roy Choudhury, Advocate.
BEFORE
HON'BLE THE CHIEF JUSTICE MR. A. K. GOEL
THE HON'BLE MR. JUSTICE C. R. SARMA
Mat. Appl.18 of 2008
Page 1 of 17
2
Date of hearing : 03.01.2012
Date of judgment : 03.01.2012.
JUDGMENT AND ORDER (Oral)
(A. K. Goel, CJ.)
1. This appeal has been preferred by the husband against denial of divorce sought by him under Section 13 of the Hindu Marriage Act, 1955, inter alia, on the ground of cruelty.
2. Marriage between the parties was solemnised on 04.05.1998. The appellant was a medical graduate and studying in MS course and the respondent wife was also in the same profession working as a dentist. Two children were born out of the wedlock -- one son in the year 1999 and a daughter in the year 2003. Relations between the parties became strained which led to filing of the divorce petition by the appellant husband in the year 2003 with the allegation that the wife refused to stay with him as she wanted to continue her medical practice at Jorhat while the appellant was doing his medical practice at Guwahati. Her behaviour was not proper. In March, 2001, she met the appellant and expressed regret for the past conduct but contrary to her promise, she remained indifferent. She purchased Mat. Appl.18 of 2008 Page 2 of 17 3 a plot of land at Jorhat and shifted there and after 08.07.2003 she practically stopped all relations with the appellant. This amounted to wilful desertion and cruelty.
3. The version of the appellant was contested by the respondent wife by stating that her father-in-law made a demand of Rs.2 (two) lakhs which she could not fulfil on account of which the family of the appellant got annoyed. The appellant was initially residing in a hostel and it was not possible for her to stay in the hostel. She was staying at Jorhat where she had started her practice. She was willing to live with the appellant at Guwahati but the appellant did not make any arrangement for her stay there. She never deserted the appellant and wanted to continue to live with him and to continue the relationship. She also made efforts through Dr. Bhaikan Chand Prajapati for reconciliation. On 28.10.2004 the appellant sent a letter whereby she was asked not to join him at Guwahati and if she made such an attempt there may be dire consequences. He also informed the police to debar her entry and also threatened to leave the house if she came there.
4. After considering the pleadings, the learned trial Court framed following issues :
Mat. Appl.18 of 2008 Page 3 of 17 4 "Issue No.1 : Whether the respondent has deserted the petitioner with effect from 9.7.2002? Issue No.2 : Whether the respondent has treated the petitioner with cruelty?
Issue No.3 : Whether the allegations made by the petitioner constitute cruelty towards the respondent? Issue No.4 : Whether the petitioner is entitled to the relief claimed?
Issue No.5 : To what relief(s) are the parties entitled?"
5. After considering the evidence adduced by the parties, it was held that the version of the appellant was not acceptable.
The appellant appeared as his own witness as PW 1 and examined his father as PW 2. The respondent appeared as her own witness as DW 1 and examined her father as DW 2. The version in their evidence was the same as in the pleadings, as set out above.
6. Under Issue No.1 it was held that the petition was filed within two years from the separation and thus statutory ground of desertion under Section 13(1)(b) of the Act had not expired. The petition premature and not maintainable.
Mat. Appl.18 of 2008 Page 4 of 17 5
7. Under Issue No.2 it was held that ground of cruelty was not made out. The appellant was initially living in the hostel as MS student. He joined Shankardev Netralaya at Guwahati but continued to live in a hostel. He went to Chennai for one year for Fellowship training. He sent notice dated 20.03.2000 asking his wife to live at Tinsukia where the family of the appellant was residing when the appellant was residing at Guwahati. The operative finding recorded by the trial Court is as under :
"15. The facts and circumstances of the cited case are totally different. In the present case the petitioner insisted the respondent to go to Tinsukia, his parental house and stay there, whereas he has been residing at Guwahati. From his letter Exhibit Kha it is crystal clear that he had no intention to bring his wife with him. He always insisted his wife to reside with her in-laws. From the text of the letter written by the petitioner to his wife, it is clear that in so many words and very emphatically he made clear to his wife that he would in no case resume matrimonial relations and she should not think of coming to his house at Guwahati. Consequently, it could not be said that the respondent has been living separately with intention to leave her husband. The petitioner cannot get benefit of his own wrong.
16. A wife has a right to insist for living together with the husband. When the husband had no proper accommodation at Guwahati he cannot compel his wife to stay with his parents and Mat. Appl.18 of 2008 Page 5 of 17 6 it was adequate for wife to stay with her parents until the husband can arrange accommodation at his place of work. But when the husband arranged a separate accommodation he debarred the respondent to join him."
"18. In this case the petitioner has alleged that the respondent refused to cohabit with the petitioner since 1998. But again he stated that in the month of March 2001 she came to join and promised to shift at Guwahati. She accompanied the petitioner to Tinsukia to celebrate the birthday of their son on 08.07.2001. The petitioner came from Chennai to Jorhat on 06.04.2002 and stayed with the respondent for 4/5 days. She delivered a female child on 08.01.2003. Thus it is not a case that both husband and wife renounced their relationship as alleged."
"21. In this case the wife is still ready to stay with her husband. Her refusal to stay with her in-laws cannot be a case of breakdown beyond repair."
8. We have heard Mr. B. Banerjee, learned counsel for the appellant and Mr. G. N. Sahewalla, learned Senior Counsel appearing for the respondent-wife and also perused the records.
9. Learned counsel for the appellant submits that the ground of cruelty stands established from the fact that the wife was living Mat. Appl.18 of 2008 Page 6 of 17 7 separately at Jorhat and pursuing her medical practice as Dentist and she failed to join the appellant at Guwahati where he is doing his medical practice. He also submitted that the letter Ext- Ka, dated 28.10.2004, has been misread to mean that the appellant was not willing to continue the marriage. He submits that on similar facts, case for divorce was held to have been made out by the Hon'ble Supreme Court in G.V.N. Kameswara Rao vs. G. Jabilli [(2002)2 SCC 296] and in Vinita Saxena vs. Pankaj Pandit [(2006)3 SCC 778].
10. Learned counsel for the respondent-wife supported the finding of the learned trial Court and submits that the respondent never deserted the husband nor she treated him with cruelty. She had been ready and willing to live with him and it was only on account of the circumstances mentioned earlier that she was unable to join him and resume cohabitation. She has given birth to two children whom she is looking after. Even now she is willing to resume cohabitation if the appellant is agreeable to the same. It is the appellant himself who is unwilling for cohabitation. In the circumstances, the respondent cannot be held to be guilty of cruelty. In support of his submission reliance has been placed on judgments of the Hon'ble Supreme Court in Hirachand Srinivas Mat. Appl.18 of 2008 Page 7 of 17 8 Managaonkar vs. Sunanda [(2001)4 SCC 125] and in Manisha Tyagi vs. Deepak Kumar [(2010)4 SCC 339].
11. We have given due consideration to the rival submissions of the parties.
12. The question for consideration is whether in the facts and circumstances of the case the respondent can be held to be guilty of cruelty so as to entitle the appellant to get decree of divorce under Section 13 of the Act?
13. The sequence of admitted facts noted above shows that for about five years the parties had lived together and two children have been born during this period. We cannot thus hold that the wife had no desire to perform her matrimonial obligation or to live with the husband. It may be relevant to note the contents of letter Ext-Ka dated 28.10.2004 written by husband which is reproduced below for ready reference.
"Having considered, seen and done everything, I have come to the conclusion that I do not want to re-establish any contact/relation with you. I wish that we live our lives in our own ways. There should be no hassles from any quarters in this. Seven years is a long time. You have one place in my heart. And I do not want you to preserve my memory in your heart. (I admit though) some things can never be forgotten, even if you have Mat. Appl.18 of 2008 Page 8 of 17 9 religious sermons or take a dip into the holy Ganges. The thing that has etched in your mind can never be erased. You have set up your chamber(practice?) amid such struggles! You have also acquired your own house and are also looking after the kids. You are doing so well and I wish you to further excel in life.
My way of thinking is far apart from that of yours and I‟ll never change. I don‟t want you to live with me and suffer. Now I am in Guwahati. A couple of years hence, I might shift my business to Tinsukia or to any other place. We the three brothers want to live in joint families. We shall live jointly and because of that consideration only, I am going to construct a house in Tinsukia. I prefer my parents, siblings over you. My conscience tells me to do anything within my limits for them. If someone does not like this, let him do so. The peace that had eluded us for seven long years has returned. I do not want to lose it again. Nor do I want you lose your peace of mind. You have made your base. I would be better if you continue in that position. I am here today and may move to any other place tomorrow. I have no permanent place at Guwahati. I don‟t believe in friends. Nor do I wish to change my stand on this point.
I do not also feel any physical urge. I can live my life as a „brahmachari‟. I cannot ever deviate from my professed stand. So, my advice to you is to consider that our relationship was meant to be upto this point of time. This is a far better proposition. Now let us talk about the kids. If you are not willing Mat. Appl.18 of 2008 Page 9 of 17 10 to keep them with you, I shall do so very willingly. If you feel otherwise, then, too, I shall not „force‟ you. But one thing is certain: I do not want to restore our relationship at any cost. I have informed my lawyer and the police. As such, please do not attempt to come (to my place). This shall augur well for you.
If you are willing to go for mutual separation, there can be no other better option than that. If otherwise, then also it is O.K. A case has already been filed. Let‟s wait till the end! However, I sincerely feel that if we separate mutually with love, it will do both of us seas of good. This will not hurt either of us as badly as in the case of a bitter court fight. That will further aggravate our relationship."
14. It is, thus, clear that the husband has taken a firm stand not to resume cohabitation. Can in the circumstances the wife be said to have deserted the husband or treated him with cruelty? No tangible material has been placed on record to point out any blame on the conduct of the wife which may justify apprehension in the mind of the husband that it will not be possible for him to continue to live with her. He has taken a firm stand that he wants to live with his parents and siblings and not to live with the wife at all. On the other hand, the stand of the wife is that she is willing to adjust and live at any place with the husband. An educated and professional woman cannot be Mat. Appl.18 of 2008 Page 10 of 17 11 expected to accept every arbitrary unilateral decision of the husband. There has to be mutual adjustments and appreciation of difficulties of each other. It is not a case where the wife has not maintained matrimonial relations. If she is living separately, it is not for any extraneous consideration on her part. In these circumstances, the ground of cruelty cannot be accepted by Court just on the asking of the husband. The parties have two children -- aged 13 years and 9 years and there is no reason for granting a decree for divorce.
15. The judgments relied upon on behalf of the appellant are distinguishable. In Kameswara Rao (supra) the wife lodged a police complaint against the husband without any valid reason. The wife was found to be hostile and non-cooperative. These peculiar facts on which finding of cruelty was returned in the case of Kamaswara Rao(supra) are not identical to the facts of the present case.
16. In Vinita Saxena (supra) the wife sought divorce, inter alia, on the ground that there was no consummation of marriage. The husband tried to commit suicide and she was mercilessly beaten by the husband. The husband was a patient of paranoid schizophenia. Reversing the order of the High Court declining to Mat. Appl.18 of 2008 Page 11 of 17 12 grant divorce, the Hon'ble Supreme Court held that the facts of the case made out a case for divorce. It was observed that the marriage had lasted hardly for five months and was never consummated as the husband was incapable of performing his matrimonial obligations. The wife was wrongly blamed for the illness of the husband and was given merciless beatings. These peculiar facts noted in paragraph 23 of the judgment were held to be sufficient to make out a case for divorce. Such are not the facts in the present case.
17. We may also refer to the judgments relied upon by learned counsel for the respondent. In Harichand Srinivas, it was held that before granting decree for divorce, attempt must be made to maintain sanctity of relationship which is of utmost importance not only for the individuals concerned and their children but also for the society.
18. In Manisha Tyagi, setting aside the finding of cruelty recorded against the wife, it was held that the conduct of the spouse has to be shown to be so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. Cruelty could be held to be established if there was continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse Mat. Appl.18 of 2008 Page 12 of 17 13 to the other. In that case, the conduct of the wife was held not to amount to cruelty. Reiterating the tests laid down in Shobha Rani vs. Madhukar Reddi [(1988)1 SCC 105], it was held that cruelty was a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
19. The principles for determining whether in a given case ground for cruelty has been established are now well known. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband are factors which may lead to mental or legal cruelty. Whether or not a party to marriage is guilty of cruelty is a question of fact and degree in each case. Cruelty has to be distinguished from ordinary wear and tear of a family life. The issue has to be judged on the basis of course of conduct of the parties. Reference may also be made to judgments of the Hon'ble Supreme Court in N.G.Dastane v. S. Dastane, AIR 1975 SC 1535, Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, V. Bhagat v. D. Bhagat, (1994)1 SCC 337, Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591, Gananath Pattnaik v. State or Orissa, (2002)2 SCC 619 and Naveen Kohli v. Neelu Kohli, (2006)4 SCC 558. Mat. Appl.18 of 2008 Page 13 of 17 14
20. In Dr. N.G.Dastane v. S. Dastane, following passage from Americal Jurisprudence, 2nd Edition, Volume 24, p.206, was quoted with approval :-
"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."
Further, it was observed :-
"The Court has to deal, not with an ideal husband and an 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 overlook or gloss over mutual Mat. Appl.18 of 2008 Page 14 of 17 15 faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins, (1963) 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 about 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 bout the spouses think and behave as reasonable people.
Xxx xxxxx xxxx xxxx
50. ....... However, learned counsel for the respondent is right in stressing the warning given by Denning, L.J., in Kaslefsky vs. Kaslefsky (1950)2 All ER 398 at p. 403 that "if the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperilled. ....... Passion and petulance have perhaps Mat. Appl.18 of 2008 Page 15 of 17 16 to be suffered in silence as the price of what turns out to be an injudicious selection of a partner....."
21. In Chetan Dass v. Kamla Devi, AIR 2001 SC 1709, it was observed :
"14. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and prosperous society. Institution of marriage occupies an important place and role to pay in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievable broken marriage" as a straight jacket formula for grant of relief of divorce. This aspect has to Mat. Appl.18 of 2008 Page 16 of 17 17 be considered in the background of the other facts and circumstances of the case."
22. Institution of marriage occupies important place in the society. Concept of divorce was unknown under the Hindu law and has been introduced only by a statute. Policy of law is not to dissolve a marriage unless a case is made out. Responsibility to continue the marriage is not only of the wife but also of the husband.
23. In the present case, conduct of the wife has not been shown in any manner to be of such objectionable magnitude as to amount to cruelty. We are, thus, unable to take a view different from the view taken by the learned trial court in the facts and circumstances of the present case.
24. Accordingly, affirming the decree of learned trial Court the appeal is dismissed.
JUDGE CHIEF JUSTICE
TUC
Mat. Appl.18 of 2008
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