Reeta vs Ankit Kumar on 5 August, 2021

[Cites 21, Cited by 2]

Allahabad High Court

Reeta vs Ankit Kumar on 5 August, 2021

Equivalent citations: AIRONLINE 2021 ALL 2209

(Delivered by Justice Sadhna Rani (Thakur)) This First Appeal has been preferred by wife - Smt. Reeta against the judgment and decree dated 30.11.2019 passed by the Additional Principal Judge, Family Court, Bijnor in Matrimonial Petition No. 1026 of 2017 under Section 13 of the Hindu Marriage Act, 1955, whereby the suit of respondent-Ankit Kumar for dissolution of marriage has been decreed and the marriage dated 20.02.2011 of Smt. Reeta and Ankit Kumar has been dissolved.

As per the facts of the case, respondent - Ankit Kumar filed a Petition under Section 13 of the Hindu Marriage Act in the Court of the Principal Judge, Family Court, Bijnor on 01.11.2017 for dissolution of the marriage with the contention that the parties were married on 20.2.2011 as per Hindu rites without any dowry. Both the parties are Hindu and governed by Hindu Marriage Act.

After marriage, Smt. Reeta lived with the respondent - Ankit Kumar and his family members. The respondent took utmost care of Smt. Reeta and made her available each and every facility but since after two days of marriage the behaviour of Smt. Reeta started changing. She used to stay in her room only and used to quarrel and abuse the petitioner and his family members specially his mother on one or the other pretext. She used to go to her parental house along with her brother-in-law and brother without informing the respondent-Ankit Kumar and his family members and when enquired, she used to become furious. When a complaint was made to her parents, they also favoured Smt. Reeta and gave threat to implicate the respondent in a false dowry case. The appellant used to humiliate the respondent by saying that she was M.A. in English and takes tuitions whereas Ankit Kumar was an illiterate boor. She agreed to marry with him so that he would live under her control and act according to her wishes. She started pressurizing the respondent - Ankit Kumar to live separately from his family. A child namely Atharv was born out of their wedlock but he was also kept away so as to deprive the respondent-Ankit Kumar of happiness of marriage. The respondent was never allowed by his wife to mix up with his son. The wife filed a frivolous complaint under the Dowry Prohibition Act against the respondent and his family members wherein the respondent - Ankit Kumar had to go to Jail for the offences which he or his family members had never committed. During the pendency of the dowry suit, through mediation the respondent took Smt. Reeta to his home on 16.7.2015 but the family members of Smt. Reeta were not pleased with that, and on 20.08.2015 the brother and brother-in-law of Smt. Reeta came to the respondent's house at about 5.00 p.m, and assaulted the respondent and his family members with lathi, danda, fist and blows and took Smt. Reeta and the child and also all the clothes and jewellery with them. The respondent being injured was medically examined. Regarding the said incident he lodged a complaint also. Now, the parties are living separately since 20.08.2015. There is no physical relationship between them since then. The wife has also filed a suit under Section 125 Cr.P.C. wherein she had refused to live with the respondent at any cost.

Because of the physical and mental cruelty given by the wife it was not possible for the respondent to live with her. He has threat to his life from the relatives of the appellant-wife. It was urged that there was no hope of improvement in the behaviour of the appellant-wife and the only way out was the dissolution of their marriage.

The written statement was filed by the appellant-wife wherein she denied the plaint allegations and pleaded that after marriage she had discharged her matrimonial duties with devotion but since the marriage the respondent and his family members used to harass her by demanding a car and Rs. 1,00,000/- as dowry. She used to do the whole household work and beared all the acts of humiliation of her in-laws and husband just to save her marriage and the reputation of her family and in-laws. She also used to take care of the cattle in the house. Once to fulfill the demand of her in-laws, she brought Rs. 50,000/- also from her parents but for the greed and continuous demand of dowry by her in-laws she was beaten and thrown out of her matrimonial house on 15.5.2015. She was then constrained to get herself medically examined and filed a FIR as Case Crime No. 21/2015 under Sections 498A, 323, 504, 506 IPC and ¾ Dowry Prohibition Act, at the Police Station Mandavar, wherein charge sheet No. 28/2015 had been filed by the police. The appellant refused that she ever went with her brother and brother-in-law without informing the respondent. She stated that she was always ready to live with her husband while her husband had willfully deserted her just to fulfill his unlawful demand of dowry of Rs. 1,00,000/- and a Santro Car. The respondent wanted to re-marry to get dowry and that is why he wants divorce. He has no love and affection for the appellant or their son. He had never enquired about the well being of their son also. On 16.7.2015 also, after mediation, she went willfully along with her husband even though the respondent and his family members were adamant on their dowry demand. Her brother and brother-in-law had no objection, if she lived with the respondent. But on 20.8.2015 at about 4.00 p.m., she was beaten by her husband and his family members by fists, kicks, lathi and danda. She was saved by the villagers, who had informed the brother of the appellant. The brother of the appellant, Bhopal Singh then took her with him and got her medically examined and filed a NCR No. 66/15 under Sections 323, 504 & 506 IPC at PS Kiratpur. The proceeding regarding the same is still pending. The appellant had never humiliated her husband rather he was causing mental and physical cruelty to her by his actions and inactions. He had thrown her out of her matrimonial house twice and she along with her son was forced to live with her parents though she was always willing to live with her husband.

The Additional Principal Judge, Family Court, Bijnor, vide judgement and order dated 30.11.2019 held that the respondent-plaintiff had proved the allegations in his petition beyond doubt and passed the decree of dissolution of marriage. One time alimony of Rs. 2,00,000/- has also been decreed to the wife.

By the order dated 07.01.2020 passed in this appeal, the respondent husband had been restrained from remarrying.

Heard Sri Anurag Sharma, learned counsel for the appellant-wife & Sri Rajendra Prasad Tiwari, learned counsel for the respondent-husband and perused the records.

It is argued by the appellant's counsel that the Family Court has granted decree of divorce on the ground of irretrievable breakdown of marriage whereas there is no such ground for divorce in Section 13 of the Hindu Marriage Act, 1955 nor this ground can be taken in the petition by the respondent. The respondent in his petition had prayed for divorce on the grounds of cruelty and desertion but the Family Court has not given any finding on them and has illegally opined that the filing of criminal cases against the husband-respondent itself proved cruelty on the part of the appellant-wife. This is not the correct approach. The respondent-husband has completely failed to prove the allegations in the divorce petition by leading evidence before the Family Court. The appeal, therefore, deserves to be allowed.

Per contra, the respondent's counsel has argued that the Family Court had reached at the right conclusion regarding cruelty and also that there was irretrievable breakdown of marriage amongst the parties, so the judgement of the Family Court deserves to be confirmed.

From the pleadings, it is clear that the facts regarding the marriage dated 20.2.2011 between the parties, birth of a child on 06.12.2011 out of the wedlock and the parties living separately from 20.08.2015 are admitted to both the parties. It is also admitted that after mediation they lived together from 16.07.2015 to 20.08.2015 and since thereafter, they are living separately and there is no physical relationship between them.

The petition for divorce was filed by the respondent Ankit Kumar on 01.11.2017 in the Family Court, Bijnor and the divorce was sought on the ground of cruelty, which is a statutory ground for divorce as per Section 13 (1) (ia) of Hindu Marriage Act.

In the plaint, not a single word has been uttered of physical cruelty given by the wife. All the charges levelled against the appellant are of mental cruelty, which the respondent-husband had to prove. The counsel for the respondent-husband placing para-'5' of the written statement states that the appellant had used foul language of 'gunde badmash' for her in laws. The said statement is in the written statement of the appellant which was drafted by the lawyer of the wife. The words used in the written statement cannot be taken as a ground of divorce. The reason being that the grounds for divorce have to be set out in the plaint itself and must be available to the petitioner at the time of filing of the petition for divorce.

The allegations levelled by the husband in the divorce petition are very general in nature. No specific date or any incident has been narrated in the petition or in the evidence of the respondent or his witnesses. The statement in the petition that the appellant used to quarrel with the respondent and his family members and used to confine herself in a room and not mixed up with his family members are general in nature. Further allegation is that the wife in specific used to quarrel with the mother of the respondent by using abusive language. The words used in the abusive language are nowhere mentioned in the petition nor in the evidence of the appellant or his witnesses. Moreover, PW2, the father of the respondent in his oral evidence stated that he used to live separately from the parties to the suit i.e. Reeta and Ankit. They though lived in the same village but their houses were separate. Their fooding was also separate and they had no concern with the fooding or lodging of the parties in dispute. There is no mention in the petition or the evidence on record that apart from the parents of the respondent any other member of his family also lived in the village. So if the version of the father of the respondent namely Dharmveer Singh is treated as correct then the allegations of the respondent husband that the appellant neither used to speak properly to his family members nor permitted them to sit with her and used to quarrel with them specially with her mother-in-law on the one or other pretext and also used to abuse them, become false.

So far as the allegations regarding desertion by the wife leaving her matrimonial house with her brother and brother-in-law without informing her husband or in-laws is concerned, again the name of brother-in-law has not been disclosed in the petition or in the evidence of the petitioner or his witnesses. Though, it is admitted by PW2 in his oral evidence at page-5 that the appellant has three brother-in-laws, who lived in villages Titarvana, Brahmpur and Khojtapur; respectively.

Further, if we go through the evidence of PW3, a relative of the husband petitioner, his testimony is a hearsay evidence. In his cross examination regarding ill behaviour of Smt. Reeta, he has stated that the said information was given to him by Phool Singh. At page-'4', he stated that the father of Ankit Kumar used to tell him that Smt. Reeta used to leave her matrimonial house without informing her in-laws. Regarding mis-behaviour of Smt. Reeta also he came to know through her mother-in-law. Though, he has stated that the incident of uttering words 'illiterate boor' for her husband by Smt. Reeta happened before him again, this is a very general allegation regarding which no specific date has been disclosed by the witness. Thus, it is clear that PW3 had adduced only heresay evidence which was not worthy of reliance.

So far as the allegations of humiliating the husband on the ground of being less educated is concerned, it is very clearly mentioned in the cross examination of PW 1 that when his wife happily came back with him after mediation then he forgot about cruelty by his wife and forgave her of all ills. So if the respondent had forgiven his wife for her cruel behaviour before 20.08.2015 then there was no other reason for him to file a petition after 20.08.2015 that too on the ground of cruelty. Regarding the incident dated 20.08.2015 it was asserted that four persons came to his house on 20.08.2015. They assaulted and injured him and took away the appellant and their son with them along with all the clothes and jewellery. There is not even a whisper in the evidence or the pleadings that the appellant had also assaulted her husband or the in-laws. So after forgiving his wife, admittedly after 20.08.2015 there was no act of mental or physical cruelty by the wife against the husband.

So far as the allegation of the husband that the wife had deserted him, the cross allegation of the wife is that the husband making dowry demand threw her out from her matrimonial house. This is an admitted fact that the dowry complaint by the wife and the complaint regarding the incident dated 20.08.2015 had been lodged by both the husband on the one side and the brother of the wife on the other side and they are still pending. The proceeding under Section 125 Cr.P.C. filed by the wife has been decided on merits. The assertion of the respondent husband in his cross examination are:- "अथर्व राजपूत कहाँ पढ़ रहा है अथवा नहीं और कब से पढ़ रहा है इसकी मुझे कोई जानकारी नहीं है। मैं पांच साल से बच्चे से नहीं मिला। खुद कहा कि बच्चे से मिलने नहीं दिया। दिनांक 20.8.2015 से हम एक दूसरे से अलग रह रहे है। इन पांच वर्षों में मैंने कभी कोई खर्च भरष-पोषण मनीआडर दवाई अथवा बच्चे के खर्च के लिए कोई धनराशि कभी रेशपोन्डेन अथवा बच्चे को अदा नहीं की। मैंने इस न्यायालय में अथवा अन्य किसी न्यायालय में पुलिस अथवा प्रशासनिक अधिकारी के समक्ष भी ऐसा कोई प्रार्थना पत्र कि मुझे अथर्व राजपूत से मिलवाया जाये, नहीं दिया ना ही मैंने अभी तक कोई प्रार्थना पत्र किसी न्यायालय में बच्चे की कस्टडी के सम्बन्ध में गुजारा।"

The above statement of the husband makes it evident that he had never made any effort to meet his son either himself or through the Court or through any other higher authority nor had filed any suit for his custody. Further, he had neither paid one time alimony of Rs. 2,00,000/- awarded by the Family Court to his wife nor had paid any interim maintenance to his wife and child awarded under Section 24 of the Hindu Marriage Act, 1955. Regarding the application under Section 125 Cr.P.C. also, he paid the amount of Rs. 1,20,000/- only when the application under Section 128 Cr.P.C. was moved by the wife-appellant. The husband has also not filed any suit for the restitution of conjugal rights.

In his evidence, the husband as PW1 has stated that even if his wife was ready to go with him and lead married life he was not ready to take her along with him, while the appellant stated that she was still ready to go with her husband. Her bona fide is established from the fact that after mediation on 16.07.2015 she went with her husband and lived with him up to 20.08.2015, when she was allegedly taken away by her brother and brother-in-law. Admittedly on 20.08.2015, there was a date in the Court in the case under Sections 498A, 323, 504, 506 IPC and ¾ D.P. Act and after recording their attendance in the Court and willingness to go together again, the parties left the Court for the house of the respondent. If the wife was not willing to live with the husband, then there was no boundation for her to go to her husband's house on 20.08.2015.

This is also noteworthy that regarding the incident of 20.08.2015, the NCR of brother of appellant was registered while the respondent husband is said to have filed a complaint in the Court. It is the allegation of the wife that when the dowry case was not disposed of by the court she was beaten up by the husband on 20.08.2015 after she came back from the Court and in that incident she got injured. The neighbours came to save her and on the information of the neighbours her brother came and took her along with her son. After that she was medically examined by the police and NCR was lodged by her brother.

Admittedly, both the proceedings regarding the incident dated 20.08.2015 and the dowry complaint filed by the wife are sub-judice. As such the findings of the learned Family Court at page-'17' in the judgment that the filing of criminal cases against the husband and refusal to live with the husband amounted to cruelty of wife towards her husband become baseless. Further, when the wife and child are forced to live separately from the husband/father, they have a right to demand maintenance from the husband/ father and if the wife is being harrassed for dowry or otherwise by the husband or her in-laws, she has a right to claim protection of law. Thus, mere filing of the proceedings under Section 125 Cr.P.C. and Section 498A, 323, 504, 506 IPC and ¾ Dowry Prohibition Act cannot be treated as a ground of cruelty of the wife against her husband.

So far as the allegations of the husband that the appellant used to pressurize him to live separately from his parents they themselves become false because the father of the respondent in his evidence stated that he and his wife lived separately in the same village and they were having separate fooding and lodging. They had no concern with the parties to the divorce suit.

From the above discussion, it is clear that, on one hand, the learned Family Court has not recorded any finding regarding cruelty in the impugned judgement and only on the basis of pending criminal cases has illegally held the appellant was guilty of committing cruelty towards her husband, on the other hand it has not returned any finding on the ground of desertion.

Placing reliance upon the judgments of the Apex Court in 2013 (4) AWC 3292 Supreme Court, Ashok Kumar Jain Vs. Sumati Jain, 2015 (112) ALR 382, Satendra Kumar Gupta Vs. Smt. Kanchan Gupta & others, 2010 (81) ALR 771 - Neelam Kumar Vs. Dayarani, K. Sriniwas Vs. D.A. Deepa, AIR 2013 Supreme Court 2176, Poonam Gupta Vs. Ghanshyam Gupta, AIR 2003 (Allahabad) 51, Durga Prasann Tripathi Vs. Arundhati Tripathi, Sharma/Saroj Sharma (2007) 2 SCC 263, the learned Family Court had reached at the conclusion that there was an 'irretrievable breakdown of marriage' between the parties and the marriage was beyond repair as such there was no other way except to dissolve their marriage and award decree of divorce.

When we go through Section 13 of the Hindu Marriage Act, 1955, we find that there is no such ground as 'irretrievable breakdown of marriage' of divorce and, thus, the Family Court could not have granted the divorce except on the grounds mentioned in Section 13 of the Hindu Marriage Act, 1955 As regards the judgment in Rishikesh Sharma Vs. Saroj Sharma, (2007) 2 Supreme Court Cases 263 relied by the husband, we find that as per facts therein the parties were living separately for the last 27 years. The husband had remarried and was living with another lady. The only child born out of the wedlock had already been given in the second marriage, then in the facts of that case the Hon'ble Apex Court reached at the conclusion that there was 'irretrievable breakdown of marriage'. The present case is distinct on the facts and the benefit of said judgment cannot be taken.

In K. Srinivas Rao Vs. D.A. Deepa (2013) 5 Supreme Court Cases 226, it is held that whether the marriage is beyond repair on the ground of bitterness created by the acts of the husband or the wife or both, the courts have always taken irretrievable breakdown of the marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage, which is dead for all purposes cannot be revived by the court's verdict if the parties are not willing. This is because the marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree.

In Darshan Gupta Vs. Radhika Gupta, (2013) 9 Supreme Court Cases 1, the Apex Court has opined that the Apex Court in some cases had dissolved the marriage on the ground of 'irretrievable breakdown' but in those cases, the legal position was not taken into consideration and hence, they are not precedents. It is also mentioned in para-'52' of this judgement that the decree of divorce on the ground of 'irretrievable breakdown' of marriage could not be granted for the simple reason that the breakdown was from the side of the husband only. The Apex Court found that where the wife was intensely concerned with her future relationship with her husband and her greatest desire was to rejoin her husband and to live in a normal matrimonial life, in that case the Court cannot proceed to grant decree of divorce.

We may further note that the Apex Court in Vishnu Dutt Sharma Vs. Manju Shrama reported in 2009 (6) SCC 379 has held that as no ground of irretrievable break down of marriage is provided by the legislature for granting a decree of divorce, the Court cannot add such a ground to Section 13 of the Act as that would amount to amending the Act, which is a function of the legislature. The divorce on the ground of 'irretrievable break down' by a judicial verdict would amount to adding a clause to Section 13 of the Act to the effect that 'irretrievable break down of the marriage' is also a ground for divorce. It is for the Parliament to enact or amend the laws and not the Court.

Same view has been taken by the Apex Court in Gurbux Singh Vs. Harminder Kaur reported in 2010 (14) SCC 301 wherein it was noted that the Apex Court while exercising its jurisdiction under Article 142 of the Constitution on rare occasions, has granted the extraordinary relief de hors to the grounds mentioned in Section 13 of the Act.

The power exercised by the Apex Court under Article 142 of the Constitution being extraordinary, no benefit can be taken by the respondent-husband from the said decision.

The family court has completely misdirected itself in granting the decree of divorce on the ground of 'irretrievable break down of marriage' when both the grounds of cruelty and desertion for seeking divorce had not been proved by the petitioner-husband.

Consequently, the judgement and decree dated 30.11.2019 passed by the Additional Principal Judge, Family Court, Bijnor, is hereby set aside. The Marriage Petition No. 1026 of 2017 (Ankit Kumar Vs. Reeta) of respondent-Ankit Kumar under Section 13 of the Hindu Marriage Act, 1955 is accordingly, dismissed.

The appeal is allowed. No order as to costs.

Order Date :- 5th August, 2021 gp

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