Uttarakhand High Court
Meera Sharma vs Ravikant Sarma on 3 July, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 53 of 2014
Meera Sharma D/o Dharmanand Tiwari ......Appellant
Versus
Ravikant Sharma S/o Late Sri Dinanath Sharma
...... Respondent.
Present:
Mr. J.P. Joshi, Senior Advocate assisted by Mr. Dinesh Gahatori, Advocate for the
appellant.
There is no representation for the respondent.
JUDGMENT
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Dated: 3rd July, 2017 Per Hon'ble Sharad Kumar Sharma, J.
In the First Appeal where the appellant has questioned the judgment dated 31st March, 2014, rendered by the Court below whereby the plaintiff / appellant, who is the wife in the suit sought a decree for dissolution of marriage which has been dismissed, consequently denied by Court below.
The brief facts of the case of the appellant before the Court below was, that her marriage was solemnized with the defendant / respondent, herein, on 24th September, 2009, in accordance with the Hindu rites and rituals at Delhi. But due to concealment of material fact as regard to the credentials of the defendant respondent, which was revealed to the plaintiff / appellant at a later stage, she was shocked to know / and also owing to the mis-behaviour which she has to face at the hands of the defendant / respondent, she was forced to file the Suit under Section 13 of the Hindu Marriage Act seeking dissolution of marriage.
Apart from the cruelty, another major ground which constituted for the plaintiff / appellant to seek dissolution of 2 marriage was that husband has got illicit relationship with other females and, due to which, he often remains out of house for days together.
Out of the wedlock on 15th December, 2010, a daughter was born and all expenditure of treatment and of hospital at the time of the birth of the daughter was borne by the parents of the plaintiff / appellant. It is the case of the wife that the information about the birth of the daughter was communicated to the in-laws, they showed no concern or attachment rather they pressed upon that until and unless she brings a sum of Rs. 5 lacs, they would have no concern or relationship with the plaintiff / appellant or her daughter and will not permit her to come back.
The plaintiff / appellant contended that when despite of all efforts, it yielded no result, and plaintiff / appellant became dependent upon her parents and started residing with them from 6th August, 2010, and since then, the respondent had not made efforts to meet his daughter, she sought for dissolution of marriage based on the ground of cruelty and desertion.
From the judgment impugned, it seems that notices were issued by the Family Court but defendant had not put in appearance and the plaintiff had to lead her ex-parte evidence, in support of her case. The plaintiff appeared in the witness box and submitted her affidavit in support of examination-in-chief, i.e. paper No. 16A-2 and she also produced the affidavit of Janki W/o Dharma Nand, i.e. the mother of the plaintiff / appellant. She also produced PW3 Sanjay, her brother to support her case.
It goes without saying that the plaint allegation and the affidavit supported by the plaintiff / appellant version as it 3 was not controverted nor any cross examination of the witnesses produced by the appellant was done before the Court below. On reading in totality the contents of the plaint allegation and the affidavit. In the absence of there being any denial of the same because of non appearance of the defendant, it was expected that the Court ought to have taken those assertion to be true since uncontroverted, and, more particularly, when defendant knowing the fact that the proceedings are pending had chosen not to defend himself and after putting in appearance.
The Hon'ble Apex Court in the case of Express Newspapers Pvt. Ltd. Vs. Union of India reported in AIR 1986 SC 872, although, the case which was under
consideration was dealing with the jurisdiction vested under Section 32 and 226 on the constitutional Courts in relation to non-refuting of the pleading has held that when an allegation in the pleading remains un-rebutted, the Court would in such a case be constrained to accept the allegation as remaining un-rebutted and unanswered to the test of probability. The Apex Court in para 115 and 119 have held as under :
"115. It is somewhat strange that although definite allegation of mala fide on the part of the respondents particularly the Government for the day at the center were made with sufficient particulars and though the respondents had ample time to file their affidavits in reply, none of the respondents except respondent No. 2, the Lt. Governor of Delhi and respondent No. 5, Land & Development Officer have chosen to deny the allegations. The counter-affidavit of respondent No. 2 purporting to be on behalf of all the respondents is that the allegations made by the petitioners in paragraphs 11, 12 and 13 are not 'relevant' to the matter in issue. In C.S. Rowjee and Ors. v. A.F. State Road Transport Corporation [1964] 4 S.C.R. 330, the Court in a matter arising out of the 4 Motor Vehicles Act, 1939 where certain allegations against the Minister went uncontroverted, had occasion to administer a word of caution. Where mala fide are alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. For otherwise such allegations remain unrebutted and the Court would in such a case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of probability. That precisely is the position in the present case, in the absence of any counter-affidavit by any of the respondents. One should have thought that the Minister for Works & Housing should have sworn an affidavit accepting or denying the allegations made by the petitioners. At our instance, M.K. Mukherjee, Secretary, Ministry of Works & Housing has filed a supplementary affidavit. He avers that the impugned notice dated March 10, 1980 of re-entry upon forfeiture of lease issued by the Engineer Officer, Land & Development Office was on the basis of press reports i.e. reports of the press conference held by the Lt. Governor. Again, there is no attempt on the part of the Union of India, Ministry of Works & Housing to deny the allegations of mala fides on the part of the Government and its functionaries in issuing the impugned orders. On the contrary, he avers that respondent No. 1 'adopts the counter-affidavit filed by respondent No. 2'. It is not for the parties to say what is relevant or not. The matter is one for the Court to decide. There is nothing before us from which we can say that the allegations in paragraphs 11, 12 and 13 of the petition made by the petitioners are not well-founded. Mala fides on the part of the Government in power or its functionaries would be sufficient to invalidate the impugned notices. Fraud on power vitiates the impugned orders if they were not exercised bona tide for the purpose for which the power was conferred.
119. In Dr. Ram Manohar Lohia v. State of Bihar and Ors. [1966] 1 S.C.R. 708, it was laid down that the Courts had always acted to restrain a misuse of statutory power and more readily when improper motives underlie it. Exercise of power for collateral purpose has similarly been held to be a sufficient reason to strike down the action. In State of Punjab v.5
Ramjilal and Ors : [1971] 2SCR550, it was held that it was not necessary that any named officer was responsible for the act where the validity of action taken by a Government was challenged as mala fide as it may not be known to a private person as to what matters were considered and placed before the final authority and who had acted on behalf of the Government in passing the order. This does not mean that vague allegations of mala fide are enough to dislodge the burden resting on the person who makes the same though what is required in this connection is not a proof to the hilt, as held in Barium Chemicals Ltd. and Anr. v. Company Law Board [1966] Su S.C.R. 311, the abuse of authority must appear to be reasonably probable."
In the case in hand, admittedly, before both the Courts below though it was a proceeding under Section 13 but if the respondent has not appeared deliberately and the grounds and pleadings raised by the plaintiff with regard to cruelty and desertion is not controverted, it would be deemed to be un-rebutted and ought to have been accepted as it was because a party to the proceedings before a Court cannot be permitted to take Courts for a ride.
If the averments in the pleading are not controverted, then the Court has no alternative option and should proceed on the basis that averments as if it had been admitted by the respondents as not controverted.
The learned Family Court without considering or recording the finding on the case taken and established by the appellant by her pleading and by her statement and statement of other witnesses produced by appellant. The Court on its own considered the impact of the judgment of the Apex Court, whereby, it has inferred that the circumstances which has been narrated by the appellant in the plaint and in her statement will not amount to be a 6 cruelty as settled by the Apex Court in a judgment reported in AIR 2006 SC 1675, Navin Kohli Vs. Nita Kohli.
Learned Family Court failed to take note of the fact that the Hon'ble Apex Court in the said judgment was dealing with the situation where the two parties were in rift with one another and there were allegations and counter allegations against each other. Meaning thereby, it was a case after contest.
In the instant case, when the defendant has deliberately, after service, failed to put an appearance, it would be presumed that assertion of plaintiff in the plaint and affidavit stands proved as not denied. The very fact that after the birth of the daughter, it is highly impresumable that a father would not even make an effort to have glimpse of his daughter, which under the normal relationship, the relationship of father and daughter is the purest form of relationship ever known to the humanity. This shows the inclination of mind and adamancy.
The apathy of the mother ought to have been visualize by the Court as to what phase of life she would have undergone, when the father of her daughter, despite of having knowledge of her birth, does not respond back or share the responsibility of upbringing of daughter which mother alone would have to go through. This fact in itself would amount to be mental cruelty not only towards his wife but also towards his daughter, as it will amount that father has shifted away to shoulder his responsibility.
The Hon'ble Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511 has held in paragraph 100 and 101 as under :-
7"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 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.8
(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.
(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.9
(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."
It may be that the plaint allegation pertaining to the illicit relationship or the demand of dowry or the misbehavior after taking liquor may not have been substantiated. But all these issues were question of fact which could have been decided only after participation of the husband in the proceedings, but admittedly fact of birth of daughter and the husband not making any effort to meet his daughter, this Court feels that this in, itself, amounts to a mental cruelty.
The learned Trial Court, while considering the impact of the judgment reported in AIR 1999 SC 1318, S. Hanumant Rao Vs. S. Ramani had mis-interpreted the said judgment because, yet again, in the said judgment, it was the magnitude / gravity of mental cruelty which was under
consideration.
This Court is of considered view that the phenomenon of mental cruelty cannot be measured with a common yardstick in each matrimonial cases, because these factors keeps on changing under the given set of circumstances and misunderstanding among the husband and wife. So a uniform principle of determining gravity of mental cruelty 10 cannot be derived by the Family Court and that too on an ex- parte basis.
The view taken by the Court that the allegations of dowry as demanded and physical assault by the husband has not been established by the appellant by her affidavit before the Court below. The demand of dowry or physical assault or hurling abuses is recurring action which continues during the course of matrimony, where attitude of partner is like that, the affidavit cannot completely explain and contain the allegation in relation thereto that has to be construed by the Court only when a party to the proceedings comes before the Court and raises the plea contrary to the one alleged against him or her and leads his or her evidence, it cannot be concluded unilaterally.
The view taken by the Court that the allegations of desertion from 5th August, 2010 was not accepted by the Court on the ground that the act of desertion has taken place on 5th August, 2010 and the petition under Section 13 of the Act has been filed on 07/05/2013. i.e. two years thereafter, i.e. beyond the period prescribed in the statute.
The Court lost sight of the fact that for the purpose of invoking Section 13 of the Act, for dissolution of marriage, on the ground of desertion, the minimum period as prescribed by the Statute is two years or more to make the desertion as the ground, which stands satisfied in the instant case.
Admittedly, after 5th August, 2010, and according to the finding too, there has been no revival of relationship between husband and wife ever since then, the appellant is living separately with her daughter. As such, there was a desertion. Looking to the conduct of the respondent before 11 the Court below for avoiding the proceedings and not participating in the same, this Court feels it was a deliberate action so as to engage the plaintiff / appellant in litigation for times immmemorable without letting her to have an order on merit and peace in life.
The conduct of the respondent is quite apparent as even before this Court when this appeal was admitted on 13th May, 2014, notices were issued calling upon the respondent to appear on or before the 17th July, 2014. The office report reveals that on 20th August, 2014, he has been served personally. This Court, after taking cognizance of the principal laid down under Order 41 Rule 12 CPC, proceeded to record the non appearance of the respondent and it was fixed for hearing. Now, almost three years are about to lapse and the respondent have shown no respect to the notices and the orders of the Court and has not cared to appear before this Court, and, thus, we as an Appellate Court have got no option except to proceed to hear the appeal in his absence as ex-parte. Thus, the appeal is heard on merits in ex-parte manner in absence of respondent, as it would be deemed that he has been sufficiently served.
Accordingly, the appeal was heard in the presence of the counsel for the appellant. On account of the fact that looking to the affidavit filed before the Court below as well as before this Court, the very fact that father has not shown any inclination to meet his daughter or appelant since 5/8/2010, and has left the mother and daughter at the mercy of the parents to be taken care at the tender age, and also because of uncontroverted ground of illicit relationship, demand of dowry and misbehavior, this Court feels that the appeal deserves to be allowed, and the impugned judgment 12 and decree dated 31st March, 2014, is set aside. The suit of the plaintiff / appellant being Suit No. 50 of 2013, Smt. Meera Sharma Vs. Ravikant Sharma preferred under Section 13 of the Hindu Marriage Act is decreed and the marriage between them as solemnized on 24th September, 2009, is hereby dissolved. Registry is directed to prepare the decree accordingly. Appeal is allowed with cost.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 03.07.2017 03.07.2017 Shiv