Uttarakhand High Court
Smt. Sunita vs Chainpal on 25 October, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 08 of 2016
Smt. Sunita ....... Appellant
Versus
Chainpal .... Respondent
Present: Mr. Sachin Panwar, Advocate for the appellant.
Mr. M.S. Tyagi, Advocate for the respondent.
Coram:- Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on 06.06.2017 Delivered on : 25.10.2017 Per - Hon'ble Sharad Kumar Sharma, J.
The wife has challenged the judgment dated 21.11.2015 by virtue of which the learned Family Court, Laksar, District Haridwar had allowed the petition under Section 13 of the Hindu Marriage Act, preferred by the plaintiff-respondent, the husband, whereby a Suit under Section 13 of the Hindu Marriage Act for dissolution of marriage dated 11.03.2008, as solemnized between the parties at village Nanhera, District Jyotiba Fulenagar has been decreed consequently the marriage between them has been dissolved.
2. The appellant-wife in the appeal, based on the grounds which has been taken by her for challenging the 2 impugned judgment dated 21.11.2015, passed in Case No. 195 of 2012 "Chainpal Vs. Smt. Sunita", are that she was married with the plaintiff-respondent on 11.03.2008 and out of the wedlock, a son was born, who at the time of institution of the proceedings for dissolution of marriage was living with her.
3. She submitted that though she was severely tortured and harassed by the respondent-husband and even to the extent that she was ousted from the matrimonial home. Despite of it, the respondent-husband, to give colours to his allegations has instituted the proceedings for dissolution of marriage which has been decreed and the marriage between them, as solemnized on 11.03.2008 was dissolved.
4. In a petition filed by the plaintiff-respondent before the learned Family Court, he had came up with the contention that the marriage between the appellant and the respondent was solemnized in a very simple manner and respondent-husband submitted that in the marriage, whatsoever normal gifts, ornaments etc. which were managed by the family members of the respondent- husband was given and rather as a matter of fact there was no specific demand raised by the family members of the plaintiff-respondent.
35. Husband's case was that after the marriage, he had completely and truly discharged his matrimonial obligations and showered all possible love and affection on her and even so much so at times he had even accepted illegal demand raised by the wife so as to keep her happy. He submitted that after the marriage, for some time relationship between them was quite conducive but later on gradually her attitude started changing and she started quarreling with the parents and the brother of the respondent.
6. Husband contended in his plaint that the appellant-wife used to pressurize the husband to leave his job and to join the place of his in-laws residence and if he fails to do so as per her wishes she will commit suicide by consuming poison. It is the case of the husband that under the aforesaid threat, even after 6 months of the marriage the plaintiff and the defendant started living separately. The husband's case was that after the marriage, he has taken the appellant-wife to Vikas Nagar, Dehradun, but over there the behaviour of the wife was also not very conducive, because she used to consume intoxicating pills, which often created trouble for the respondent- husband to control her, while she was moving in public as he anticipated any untoward incident may chance.
7. Out of the aforesaid wedlock, a son Bhupender was born, who at the time of institution of the proceedings 4 for dissolution of marriage was of about 3 years of ageonly . The husband's case was that he thought that after the birth of the son the things would become normal but it rather became more aggravated where she started consuming intoxicating pills when in isolation, which was apart from the fact that it was not only spoiling the environment in the family but was also harmful to the health of the defendant- appellant.
8. Further contentions of the husband was that while he was posted at Police Station at Herbartpur, Vikas Nagar, Dehradun somewhere in July 2010, the appellant- wife on 09.07.2010, taking advantage of the absence of the husband consumed the intoxicating pills which had deteriorated the condition of the appellant-wife and the husband contended that looking to the health condition, the appellant-wife was admitted in the health centre situated at Vikas Nagar, Dehradun, where she was put on treatment. On being discharged from the said health centre, she was brought to the matrimonial home.
9. The family members of the husband as well as the husband himself became too annoyed by the habit of appellant-wife of taking intoxicating pills. She was made to understand by all the family members to give away the habit of consuming pills but according to the husband these sermons as given by the family members and the husband was not accepted by her, rather she used to 5 threaten the family members of the husband to rope them in false criminal case. Hence, under these circumstances, it was the case of the husband that he after leaving the wife at Vikas Nagar, he came back to Dehradun
10. The husband's case was also that often the wife used to threaten by giving phone calls to the family members including parents-in-law to sell their agricultural land in her favour, failing which she will lodge the criminal proceedings, and proceedings under the Dowry Prohibition Act, 1961. It was the case of the husband that on the premise of the aforesaid threat, 4 bhigha of land was transferred in her favour by the father of the plaintiff- respondent but still the attitude of the defendant-appellant did not accede to and the environment of the family still continued to be deteriorated on account of her behaviour and ill habits of the wife.
11. The husband further submitted that after about 7 to 8 months, the family members of the wife had left the appellant-wife with the child at Laksar Railway Station and went away. On receiving the information about this said act of parents of wife of dejection, the husband's case was that he and his father went to the Laksar Railway Station to take back the wife and brought her back to the matrimonial home. Husbands further submitted that despite of all these efforts, she still continued to harass the family members on the pretext that she wanted to force 6 upon them not to drop her to the village as she does not want to live at Doiwala and if the in-laws fail to do so, she will lodge the complaint against them and she further threaten that she will consume poison and will commit suicide.
12. The husband's case in the proceedings before the Court below was that when on 16/17th May 2012 when he came back to his home the wife started creating scene in the house and after denouncing her responsibilities towards the child and living with the mother of the plaintiff- respondent, she started creating scenes by submitting that she has consumed the poison and she is about to die. She further threatened that this act of consumption of poison she has informed her family members about this incident that she has consumed the poison, this act would be fatal for the entire family as they would all be entangling themselves in numerous criminal proceedings. She threatened to ensure that the husband and his family members languish in jail.
13. The husband's case was that after having learned about the incident on 17.05.2012 about the consumption of liquor by the appellant-wife, the husband had immediately taken the appellant-wife to the Doctor where he informed the Doctor that on earlier 2 to 3 occasions also appellant-wife has consumed the intoxication pills. Doctor informed him that there is nothing 7 to worry as the same would be remedied, the husband became so fearful that he even informed the family members of the wife about the said incident which has occurred on 17.05.2012.
14. It was also the case of the husband about the 2nd incident dated 17.05.2012 where the appellant-wife has threatened that she is going to commit suicide, the father of the husband has given the information of the said incident too to the brother and mother of the appellant- wife. It was further case of the husband that on the next day i.e. on 18.05.2012 at about 01:30 pm, both brothers of appellant-wife and other relatives and the mediator of the marriage came in the Scorpio to the house of the respondent and they misbehaved and quarreled with the respondent-husband and with his mother they used abusive languages. It was on 18.05.2012 itself that the appellant-wife and the child were taken away by the brothers of the appellant wife along with all valuable which has exchanged hand during the course of the marriage.
15. The husband submitted that the behaviour, the quarrelsome attitude, the use of frequent abusive languages, the threat towards the husband and his entire family to rope them in a criminal case, and to safeguard the prestige of the family, he endured all the atrocities (He submitted that he does not want to stay with the wife anymore) Because the activities of the wife are of such a 8 nature that according to the husband it was not possible for the husband to live with the wife and thus divorce was the only way out left for him.
16. He further submitted that even the wife does not want to join with the husband and since she is under the influence of her mother and brothers and has left the matrimonial home on 18.05.2012 with them, there has been a refusal on her behalf to join the plaintiff-respondent as his wife, hence he instituted a suit for dissolution of marriage. In response to the pleadings a written statement was filed by appellant-wife. In her written statement as paper No. 11 ga she while admitting the fact of marriage and the birth of a son, she denied the rest of the plaint allegations pertaining to the cruelty.
17. She submitted that whatsoever ornaments which were given by the family members of the husband they were taken back by them immediately after the marriage and the same were never returned to her. In her written statement, she submitted that the conduct of the husband is very doubtful because whenever she used to fall ill, she was never taken care of by the respondent-husband or by his family members.
18. She submitted that whenever she fell ill the husband used to avoid administering of proper does of medicine as medically advised to her. She submitted that 9 the husband and his family member has conspired to some how get rid of the wife for which often they have mixed some un-prescribed medicine in her food due to which she started ailing. She submitted that on 09.07.2010, she has deliberately made to consume a higher dose of medicine which was mixed with the food. She submitted that under the said state of mind the respondent-husband had got certain paper signed so that the same could be utilised in future to get rid of her from his life. She submitted that the uncle of the appellant-wife had transferred 4 bhighas of land on her request and that was done with the intention that she being a female may avail a rebate in the registration fees.
19. She submitted that the malafide on the part of the husband is quite apparent and the husband immediately after executing the sale deed, which was executed by the uncle of the appellant. He got an attorney executed fraudulently in his name. She submitted that till she resided in the family she was tortured and mentally harassed.
20. It was the case of the wife that on 13.05.2012 she was once again administered the medicine by mixing it in her food due to which she fell ill. She submitted that the respondent-husband deliberately wants to severe the relationship of husband and wife and used to accuse the family members of the wife and used to say that since he 10 belongs to police force, he do whatever he wants. The wife's case was also that the husband threatened that since she was a resident of a village and not very much aware of the worldly affairs hence he threatened her to bear the consequence of the atrocities which was allegedly exercised by the family members of the husband. She specifically submitted that she had never refused to discharge her matrimonial obligations but according to the husband the wife is functioning under the influence of her brothers and other relatives and she was not discharging her responsibilities as wife.
21. On the exchange of the pleadings two issues were framed; primarily the main bone of contention pertaining to the issue of cruelty and conduct; and the second issue in relation to that what relief the party to the dispute, were entitled to?
22. The plaintiff-husband in support of his contention apart from appearing in the witness box as PW-1 has also adduced the oral testimonies of witnesses Mainpal as PW-
2. In documentary evidence, he has filed the copy of the treatment certificates and also copy of GD. The appellant- wife did not appear in the witness box to record her statement and oral evidence, despite of the fact that sufficient opportunity was granted to her by the learned family Court. Consequently the learned family Court on 11 10.09.2015 has closed the opportunity of the wife from leading evidence.
23. The learned family Court while dealing with the issue No. 1 in relation to the cruelty had recorded a finding that since the proceedings have been initiated based on the cruelty having been committed by the defendant- appellant, the Court has observed that the basis of the proceedings under Section 13 of the Hindu Marriage Act initiated by the husband was that often now and then, the appellant-wife used to threaten the family of husband that she will consume the poison and will commit suicide.
24. The learned trial Court placed reliance in the pleading raised in para 6 to the said effect and according to the plaint allegation in para 6, the entire narration of the cruel behaviour of wife and the actions taken by the husband of informing the same to the family members of the wife was pleaded. The learned trial Court held that when the appellant filed her written statement she denied the plaint allegations of para 6 and in para 17 of the written statement, in which she has submitted that she had never done any act of cruelty as pleaded by the husband, and further there is no evidence adduced by husband to support his allegations.
25. She submitted that the plaintiff-husband used to mix the medicine in her food due to which she often 12 remained ill and ultimately on 09.07.2010, the respondent- husband threatened to kill her. All these allegations pertaining to administering higher dose of medicine by the husband on 09.07.2010 were not proved by the wife because if she asserts that it was the cruelty which was exercised by the husband on account of administering the higher dose of the medicine the burden of proof was to be discharged by her. The learned trial Court, while scrutinizing the statement of PW 1 and PW 2 and the statement recorded in the cross examination submitted that the oral testimony and evidences on record brought by the husband proved the cruelty which was exercised by the appellant-wife.
26. The learned Court below observed and recorded a finding that in the absence of there being any contrary evidence produced by the wife, the evidence produced by the husband was sufficient enough to show that the wife used to act with cruelty and she used to exert threats. The learned Court further observed that according to the documents on record i.e. the photocopy of the CHC, Vikas Nagar, Dehradun wherein the appellant-wife was taken to the hospital, its registration card was placed on record to show that she was duly attended by the husband at the time when she had pretended that she has consumed poison and she was going to die. This fact was also proved by the GD entry which showed that the incident of 13 consumption of poison by the wife was duly reported to the police, which was investigated upon.
27. Learned trial Court held that to controvert the pleading and the evidences adduced by the husband about the cruelty exercised by the wife by posing threat of consuming poison which has been established by the husband, by producing medical certificates as well as by the GD entries there was no contrary or a specific pleading by way of denial in the written statement nor there was any evidence in support of the pleading to that effect by the wife. Thus the Court held that the basis of the cruelty of the husband as pleaded deserves to be accepted. The finding which has come on record shows that the appellant-wife had never appeared in the witness box to record her oral testimony, deal with judgment not appearing in witness box, though the plaintiff-husband and his witnesses were cross examined. In the cross examination it has specifically come on record that while staying at Herbertpur, the appellant-wife used to be in an intoxicating stage and it was this reason he has left the wife to her parent's home.
28. Further in the cross examination as recorded, husband has submitted that the act of consumption of intoxicating pills was reported by him to the uncle (Tau) of the wife. It has also come in the cross examination of the plaintiff that due to the threat given by the family members 14 of the wife, the father of the husband had transferred 4 bighas of land in the name of the appellant-wife. Looking to the evidence which has come on record and the conduct of the wife, the learned family Court recorded its finding on the perusal of the cross examination that living with a wife who is habitual of being in an intoxicating stage, the same stood proved by the husband as he has produced annexure 1, giving the name of the medicine which was consumed by the wife.
29. Though the examination of the PW-1 husband was duly supported by the evidence as adduced and in the statement recorded of PW 2, Manipal who too support the version, that the wife had threatened that she will consume poison because he was a direct witness as he accompanied the husband when the appellant-wife was taken to the hospital for treatment.
30. On an overall scrutiny of the plaint and the evidence, we are of the view that it shows that the basis of Section 13 of the Hindu Marriage Act, initiated by the husband was the threat extended by the wife by commission of suicide, by hanging herself or by consumption of poison and the evidence which has been placed on record by the husband was accepted by the Court as it was not controverted by wife in its specific terms. In the absence of same not being controverted it cannot be ruled out that looking to the set of allegations of 15 cruelty pertaining to the threat perception of commission of suicide and in particular the documents which show that all the medical treatments, having been given to her it would be amounting to be a cruelty within the purview of Section 13(1)(i)(a) of the Act.
31. Because the nature of the pleading which has been raised, and where the cruelty exists, though it cannot be defined in its specific terms, but the conditions of cruelty could be inferred from the conditions or scenario which has been created by the wife in the home, wherein living together and discharging the matrimonial obligations would be practically a difficult situation where the husband would always be under the threat of being roped in false allegations, and where there always exists a threat to life and living together would not be safe.
32. There is another aspect of the matter though dealt earlier that if the wife does not appear in the witness box to record her statement or to controvert the defense from the ground taken by the plaintiff for relief claimed in the suit for divorce, adverse inference is to be drawn against the wife.
33. The Hon'ble Apex Court, in the case of Samar Ghosh Vs. Jaya Ghosh reported in 2007 (4) SCC 511. Para 98, 99, 100 and 101 of the said judgment are quoted as under:
16"98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.
99. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
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.17
(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 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 18 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."
34. The aforesaid contention stands settled by the Hon'ble Apex Court in a judgment as reported in AIR 1999 Supreme Court 1341 in the case of Iswar Bhai C. Patel alias Bachu Bhai Patel V. Harihar Behera and another. The Hon'ble Apex Court had an occasion to consider the provision contained under Section 114 (g) of the Indian Evidence Act, 1872 and has held if the defendant-wife does not want to appear in the witness box to controvert the contentions of the plaintiff-husband, an adverse inference can be drawn against him in the light of the provisions contained under Section 111 (g) and Section 111 (h). Para 29 of the said judgment is reproduced herein below:
"29. Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in support of 19 his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by respondent No. 2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of respondent No. 1 in the Central Bank of India., Sambalpur Branch, and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he stated in the written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of respondent No. 1 in its entirety and passing a decree against the appellant also."
35. Hence the Appeal has got no force and the same is dismissed. No order as to costs.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 25.10.2017 Mahinder/